Kent, Ch. J.
delivered the opinion of the court.. The judgment in this case, is regular upon the record. An attorney of this court appears for the defendant to a writ which had been sued out, but not served, and he, after-wards, confesses judgment. The want of a warrant of attorney is cured, after judgment, by the statute of amendements and jeofails. (Rev. Laws, vol. 1. 129, 132.) Ifthe attorney has acted without authority, the defendant has hisremedy against him ; but the judgment is still regular, and the appearance entered by the-attorney, without war, rant, is a good appearance, as to the court, (l Keble, 89. 1 Salk. 86. Comyns' Dig. tit. Attorney, (B). 7.) This rule of law, though perfectly, well settled, would oftentimes be unjust in its operation, if it was not so restrained as to save the party, who may be affected by it, from injury. It was, therefore, wisely laid down by the K. B. in the time of Lord Holt, (l Salk. 88.) that if the attorney for the defendant he not responsible^ or perfectly competent to answer to his assumed client, they would relieve the party against the judgment, for otherwise ;a defendant might be undone. I am willing .to go still. further. [301]*301•■and in every such case, to let the defendant in to a defence to the suit. To carry our interference beyond this point, would be forgetting that there is another party in the cause, equally entitled to our protection.
The plaintiffs, in this case, are as innocent as the defendant, and their agent, reposing upon the appearance of the defendant, by a regular attorney of this court, 'suspends the prosecution of the writ which he had taken out, and after a delay equal to the ordinary prosecution of the suit to judgment, accepts of a cognovit. If all this proceeding is to be vacated, the plaintiffs would probably lose their debt; as other creditors may, in the mean time, step in and gain a preference ; and from suggestions made upon the argument, this application is very possibly a struggle of subsequent creditors, striving to gain a preference over an insolvent’s estate. The plaintiffs, and such creditors, (if such there be,) have, at least, equal equity, and in addition to that, the plaintiffs have the legal advantage. If there had been any collusion between the plaintiffs, and the attorney for the defendant, it would have altered the case; but there is none shown or pretended, and my whole opinion proceeds on the ground, that the plaintiffs have acted with good faith.
I am disposed, therefore, to prevent all possible injury to the defendant, and at the same time, to save the plaintiffs from harm. This can be done, only, by preserving the lien, which the plaintiffs have acquired by their judgment, and by giving the defendant an opportunity to. plead, if he has any plea to make, to the merits. To go further, is not required by any considerations of justice or policy ; and it would be repugnant to the established practice and precedents. It hink it can be shown that the court is bound, by a series of decisions, to preserve the judgment. The usual course has been to turn the injured party over to his remedy against the attorney, for the deceit; but we novz disarm this practice of [302]*302all its severity, by not confining" the party to that remedy, allowing him to come in and plead.
By licensing attorneys, the courts recommend them to the public confidence; and if the Opposite party, who has concerns with an attorney, in the business of a suit, must always, at his peril, look beyond the attorney, to his authority, it would be productive of great public inconvenience. It is not usual for an attorney to require a written warrant from his client. He is generally employed by means of some secret confidential communication. The mere fact of his appearance, is always deemed enough for the Opposite party, and for the court. If his client’s denial of authority is to vacate all the proceedings, the consequences would be mischievous. The imposition might be intolerable.
Fitzherbert, iti his N. B. 96. (E). says, that if an attorney deceitfully appear for the defendant, and plead, and suffer the inquest to pass by default, by which the plaintiff recovers, the defendant, who was never summoned, shall have a writ of deceit against such attorney, and the writ appears in the register. And in the case, in 21 Edw. III. 45. pl. 64. and which is cited in the note to F. N. B. 95. a. it seems to have been agreed by the judges, that if one answer for another, as attorney, without any warrant, the defendant may challenge that he was not his attorney, and appeal to the record ; but if judgment be rendered upon the plea of the attorney, then the only remedy of the defendant is by a writ of deceit against the attorney, to recover his damages; and ift he demandant be a party to the deceit, then he shall recover his lands also.
The same doctrine was laid down in Allesley v. Colley. (Cro. Jac. 695.) The court of C. B. would not relieve a party upon audita querela, when an attorney, without warrant from him, and without his notice, appeared for him- to an action,:and suffered judgment by default, upon’ [303]*303•non sum informatics entered, upon which he had been taken in execution. The court said he must take his remedy, by writ of deceit, against the attorney.
The two cases already referred to from Salkeld, (and which are considered by Lord Chief Baron Cornyns, as good law,) show that the rule had not been altered in the time of Lord Holt; and the case of Lorymer v. Hollister, Which was in 12 Geo. I. (l Str. 693.) is a very strong decision of the K. B. for there, though the writ had been taken out, as in this case, it does not appear to have been served, and the court compelled an attorney, who had, through misinformation, undertaken to appear for the defendant, without warrant or direction, to complete his appearance, so as to render the judgment, which the plaintiffs had taken by default, regular. A similar rule was afterwards granted, in the similar case of Burnfield v. James, so late as Hil. 6 Geo. II. (Barnad. K. B. vol. 2. p. 232.) and the same principle, though in another shape, is contained in the case of Rex v. Addington, (Sayer, 259.) in the year 1756; for there an attorney entered into a rule of nisi prius, without authoritybut the court of K. B. made the rule absolute, notwithstanding; and said, that if an attorney exceeds his authority, and Ms client be thereby prejudiced, the attorney is liable to make satisfaction.
The supreme court of Pennsylvania have acted upon the same ground. In M'Cullough v. Guetner, (1 Binney, 214.) an attorney undertook to appear for a defendant, not summoned, and without any warrant of attorney, and the court held the appearance good. And in a subsequent case, in the same court, (1 Binney, 469.) an attorney undertook, without the knowledge or consent of the defendant, to revive a suit against him, after it had been, by a non pros, legally out of court, with the knowledge and consent of the attorney, for near two years; and the court said the act was binding, and that if the attorney had done wrong, he was answerable.
[304]*304In some of the authorities referred to, it is stated that t^e Party, for whom the attorney appeared, was never summoned or taken.
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Kent, Ch. J.
delivered the opinion of the court.. The judgment in this case, is regular upon the record. An attorney of this court appears for the defendant to a writ which had been sued out, but not served, and he, after-wards, confesses judgment. The want of a warrant of attorney is cured, after judgment, by the statute of amendements and jeofails. (Rev. Laws, vol. 1. 129, 132.) Ifthe attorney has acted without authority, the defendant has hisremedy against him ; but the judgment is still regular, and the appearance entered by the-attorney, without war, rant, is a good appearance, as to the court, (l Keble, 89. 1 Salk. 86. Comyns' Dig. tit. Attorney, (B). 7.) This rule of law, though perfectly, well settled, would oftentimes be unjust in its operation, if it was not so restrained as to save the party, who may be affected by it, from injury. It was, therefore, wisely laid down by the K. B. in the time of Lord Holt, (l Salk. 88.) that if the attorney for the defendant he not responsible^ or perfectly competent to answer to his assumed client, they would relieve the party against the judgment, for otherwise ;a defendant might be undone. I am willing .to go still. further. [301]*301•■and in every such case, to let the defendant in to a defence to the suit. To carry our interference beyond this point, would be forgetting that there is another party in the cause, equally entitled to our protection.
The plaintiffs, in this case, are as innocent as the defendant, and their agent, reposing upon the appearance of the defendant, by a regular attorney of this court, 'suspends the prosecution of the writ which he had taken out, and after a delay equal to the ordinary prosecution of the suit to judgment, accepts of a cognovit. If all this proceeding is to be vacated, the plaintiffs would probably lose their debt; as other creditors may, in the mean time, step in and gain a preference ; and from suggestions made upon the argument, this application is very possibly a struggle of subsequent creditors, striving to gain a preference over an insolvent’s estate. The plaintiffs, and such creditors, (if such there be,) have, at least, equal equity, and in addition to that, the plaintiffs have the legal advantage. If there had been any collusion between the plaintiffs, and the attorney for the defendant, it would have altered the case; but there is none shown or pretended, and my whole opinion proceeds on the ground, that the plaintiffs have acted with good faith.
I am disposed, therefore, to prevent all possible injury to the defendant, and at the same time, to save the plaintiffs from harm. This can be done, only, by preserving the lien, which the plaintiffs have acquired by their judgment, and by giving the defendant an opportunity to. plead, if he has any plea to make, to the merits. To go further, is not required by any considerations of justice or policy ; and it would be repugnant to the established practice and precedents. It hink it can be shown that the court is bound, by a series of decisions, to preserve the judgment. The usual course has been to turn the injured party over to his remedy against the attorney, for the deceit; but we novz disarm this practice of [302]*302all its severity, by not confining" the party to that remedy, allowing him to come in and plead.
By licensing attorneys, the courts recommend them to the public confidence; and if the Opposite party, who has concerns with an attorney, in the business of a suit, must always, at his peril, look beyond the attorney, to his authority, it would be productive of great public inconvenience. It is not usual for an attorney to require a written warrant from his client. He is generally employed by means of some secret confidential communication. The mere fact of his appearance, is always deemed enough for the Opposite party, and for the court. If his client’s denial of authority is to vacate all the proceedings, the consequences would be mischievous. The imposition might be intolerable.
Fitzherbert, iti his N. B. 96. (E). says, that if an attorney deceitfully appear for the defendant, and plead, and suffer the inquest to pass by default, by which the plaintiff recovers, the defendant, who was never summoned, shall have a writ of deceit against such attorney, and the writ appears in the register. And in the case, in 21 Edw. III. 45. pl. 64. and which is cited in the note to F. N. B. 95. a. it seems to have been agreed by the judges, that if one answer for another, as attorney, without any warrant, the defendant may challenge that he was not his attorney, and appeal to the record ; but if judgment be rendered upon the plea of the attorney, then the only remedy of the defendant is by a writ of deceit against the attorney, to recover his damages; and ift he demandant be a party to the deceit, then he shall recover his lands also.
The same doctrine was laid down in Allesley v. Colley. (Cro. Jac. 695.) The court of C. B. would not relieve a party upon audita querela, when an attorney, without warrant from him, and without his notice, appeared for him- to an action,:and suffered judgment by default, upon’ [303]*303•non sum informatics entered, upon which he had been taken in execution. The court said he must take his remedy, by writ of deceit, against the attorney.
The two cases already referred to from Salkeld, (and which are considered by Lord Chief Baron Cornyns, as good law,) show that the rule had not been altered in the time of Lord Holt; and the case of Lorymer v. Hollister, Which was in 12 Geo. I. (l Str. 693.) is a very strong decision of the K. B. for there, though the writ had been taken out, as in this case, it does not appear to have been served, and the court compelled an attorney, who had, through misinformation, undertaken to appear for the defendant, without warrant or direction, to complete his appearance, so as to render the judgment, which the plaintiffs had taken by default, regular. A similar rule was afterwards granted, in the similar case of Burnfield v. James, so late as Hil. 6 Geo. II. (Barnad. K. B. vol. 2. p. 232.) and the same principle, though in another shape, is contained in the case of Rex v. Addington, (Sayer, 259.) in the year 1756; for there an attorney entered into a rule of nisi prius, without authoritybut the court of K. B. made the rule absolute, notwithstanding; and said, that if an attorney exceeds his authority, and Ms client be thereby prejudiced, the attorney is liable to make satisfaction.
The supreme court of Pennsylvania have acted upon the same ground. In M'Cullough v. Guetner, (1 Binney, 214.) an attorney undertook to appear for a defendant, not summoned, and without any warrant of attorney, and the court held the appearance good. And in a subsequent case, in the same court, (1 Binney, 469.) an attorney undertook, without the knowledge or consent of the defendant, to revive a suit against him, after it had been, by a non pros, legally out of court, with the knowledge and consent of the attorney, for near two years; and the court said the act was binding, and that if the attorney had done wrong, he was answerable.
[304]*304In some of the authorities referred to, it is stated that t^e Party, for whom the attorney appeared, was never summoned or taken. In others, this fact is left in doubt, ... ' or necessarily implied. It was never made a point in any of them. The rule is laid down generally, without any distinction ; nor is there any distinction in principle, between the case of an attorney, appearing' without authority, and suffering, or confessing judgment for a party, before or after that party had been served with process. The gravamen, as i$ respects the defendant, is the same in the one case as in the other ; for it consists in acting without authority, and not in acting before or after appearance. Though the cases may not seem correct, if we were to reason from first principles, yet if the rule appears to be settled, we are not at liberty to reason in that way; and I apprehend, that long experience has demonstrated, that no real danger or inconvenience has resulted from the doctrine. An attorney, appearing without authority, either through fraud or mistake, is a case not likely to happen once in an age. There is no inducement for it; but every inducement against it; and when it does happen, the interference of the court, as in this case, will show, that no very serious injury can result to the party complaining; though without the rule, another innocent party, trusting to an officer of this court, in his professional duty, might lose his whole demand, and be undone.
Against a rule, so long and so authoritatively established, there is very little to be found in the books. There are only a few solitary cases, which have never' been considered as affecting or diverting this long train of decisions. In Chivers v. Fenn, (2 Show. 126.) the court of K. B. did set aside a judgment against bail, on the ground, that the attorney, who: had appeared for them, as well as for their principal, had acted without authority. This case was in the time of Charles II. and It is a brief and loose report, not to be found in any [305]*305other reporter. It would seem that the attorney undertook to appear on the warrant of the principal, and thi§ was probably shown upon the record; for the ground of-the decision was, that the warrant of the principal for appearance, extended not to the bail. Gwillim, the late editor of Bacon's Abr. (vol. 1. p. 287.) questions, very properly, the authority of this case; and suggests that the court would not now set aside the judgment, if the defendant was regularly served with process, unless he had a good defence. This case has been long and often overruled by subsequent cases. There is also the case of Robson v. Eaton, (1 Term Rep. 62.) which arose in the K. B. since our revolution, and which', if it was intended (as I am persuaded it was not) to overthrow the former decisions upon this subject, and to introduce a new rule, cannot be received here as sufficient authority for that purpose. In that case, it was held, that the payment of a debt to an attorney, who had instituted the" suit, and recovered the money, in the name of the real creditor, but under a forged warrant of attorney, was no discharge to the defendant, and he was obliged to pay the money over again. Here both plaintiff and defendant were equally innocent; and it was inevitable, that one of them must suffer, in the first instance, and be left to take his chance for his remedy over; and the court left the hardship to fall upon the immediate victim to the fraud, who, perhaps, if he had examined, and duly questioned the warrant of attorney, might have traced and detected the forgery. I cannot perceive that the case has much bearing on the present question. The rule appears to me to be settled upon too much authority to be denied, and upon too much principle to be disturbed. Without it, there could be neither safety to suitors, nor trust in the profession.
Having thus- ascertained the rule, and subjected it to such modifications as justice required, we are of opinion, [306]*306that the motion, in the present case, to set aside the judgment, must be denied. But, in order that the defendant may not be injured, and to prevent abuse in practice, the court think proper to grant the following rule.
Ordered, that the defendant have leave, until the 1st day of September next, to plead the general issue, with notice of any special matter, if any there be, which could foe pleaded in bar, and could not be given in evidence, under the general issue; and in the mean time, that all further proceedings, under the judgment, be stayed on the part of the plaintiff; and in case of such plea, that the plaintiff be at liberty to change the venue to the county of Columbia, (if laid elsewhere,) so that the issue may be tried at the ensuing circuit, in that county. And in default of such plea, that the plaintiff be at liberty to proceed with his execution, under the said judgment; but that the costs of the said suit, together with the costs of this motion, abide the further order of the court.' And, it is further ordered, that Hezekiah L. Hosmer, the attorney for the defendant, show cause, by the first day of the next term, why an attachment should not issue against him, and that Mr. Bloodgood, the clerk of this court, as soon as may be, after the term, cause a copy of the affidavit of the defendant, John -Noyes, together with a copy of this rule, to be personally served on the said Hezekiah L. Hosmer.