The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-05-21
Attorneys Test .OaIh...Can Attorneys
Having Rebel Partners Practice I'm
West YfrEfuiR Courta? ri

the ground that the applicant had
formed partnership in the practice OF
law, with m attorney who, under the
law of West Virginia, had no right to
practice in this State: t.ta-
Mr.. SPERRY: This is a motion upon
your part to be admitted as an attorney
to the bar of this Court upon taking all
the oaths prescribed by law. The Leg.
islature in requiring the test oath of all
attorneys, simply intended to prescribe
a qualification tCfth0Ut Which no attor-
ney can be permitted to practice in this
State. 1t did not intend to declare,
take this oath shall be allowed to prac-
tice. With'this exception, each Court,
as at common law, Is still the pledge OF
every applicants claim to be admitted,
and in the exercise of Il sound discre-
tlon, may either reject or receive him,
as the case may be. BY that standard
must this motion be determined.
In the last number of the Union
Register, a newspaper, published in tho
adjoining county of Monroe, over the
signatures OF c. A. Sperry and Samuel
Price, there appeared an advertisement
to the effect that you had formed a part
nership with Mr.. Price in the practice
of your profession in four of the coun-
my circuit; which advertisements, when
interrogated by the court, you admitted
was made by your authority. Under
the act of February "a, 1856, no attor-
hey Is authorized to practice before any
court, justice or board OF supervisors in
the State, until he has taken the test
oath prescribed by law. 1t is known to
the court that Mr.. Price figured largely
in the late rebellion; that he is unable
ON that account to take this test oath,
and that his recent application to the
Supreme Court of this State for permis-
sion to qualify at its bar without being
subjected to this test, was unanimously
overruled by that court. How does
your case then stand2 Through the
columns of a public newspaper you
have made known your intention Of
practicing law in four of my courts in
partnership with a gentleman, who,
whatever his other qualifications, has
no status as attorney in this State. He
is not only DISTINGUISHED as a citizen
by the Constitution of West Virginia,
but by an express enactment of the
Legislature, he is prohibited himself
from doing what you propose to aid
him in accomplishing. Is not an ad-
vertisement by an attorney, who is
privileged to practice law, that he
means to practice it in conjunction
with an attorney who has no such
privilege. simply equivalent to public
notice that he Is associated with such at
torney for the express purpose of en-
abling him either to violate or evade
the law2 Is not this at least the
effect of it? If you have formed part
nership with Mr.. Price as you admit, and
as your card announces, when he brings
suits, or writes bills, answers, declara-
tions and other pleadingsi in your name,
or, which is the same thing, when you
do all this yourself, but in his connec-
tion, and by his advice, and divide the
fees with him, (Which the Court must
presume Is from your partnership that
you meant to dO) is he not substantial
ly praticioner at this bar, although
he. or you, as it may happeny may take
the precautiOn to mark your name to
all the proceedings.
In all respects, perhaps, except the
privilege of speaking at the bar and
signing his own name instead of
yours, is he not in fact as much men,
ber.,of the bar as you are7 think he Is.
The term "pracLice before any COURT"
in the sense of the Stat
ute, does not simply refer to
making motions or speeches in court
house, but to any and all professional
acts or proceedings, either there or else
where, which amounts to practice.
Thus, If an attorney not authorized to
appear in courts, were to open an Office
for the purpose of giving legal advice
and preparing cases for which he charg-
ed, although he did nothing else, he
would be guilty of an offense against
the Statute. An attorney who is au-
thorized to practice and who aided him
in SO doing, would be guilty of the
same offense. 1t would be a conspira-
cy to violate the law, and any combi-
nation or conspiracy for such u pur-
pose, whether consumated or not, is an
indiCtable otfense at common law. B.
and G. S29. 6 D and r. 345. Buchauan's
Case 5 Har. and Johns. 3l7, s
Serg. and Rawle 20. 3 Id. go, and any
would be contrary to public policy, and
therefore void. This Is we'll settled
law. With the private compacts or
agreements between attorneys, whether
legal or illegal, SO. long as they are
kept out of my view, I have nothing to
do; not have L ever sought, nor do 1
mean to seek to pry into them; but
when, as in this case, they assume the
shape of newspaper publication,
which on its face imports infraction or
evasion of a positive law Of the Legisla-
ture, then am bound TO notice them.
III did not, 1 should be placing both
the bench and the bar in false po-
sitiOn. A stranger, upon reading this
advertisement, might very naturally
conclude not only that the attorneys Of
this county, but that the Judge himself
paid no respect whatever 10 the Act of
February "a, 1866, and that he at least
sanctioned by indlrection, what he
dared not openly disobey. The consti-
tutionality OF this statute (Which I
never doubted) has been recently and
nuthoritively settled by the Supreme
Court of West Virginia, in the case of
the very party in whose connection you
propose to break it. l recognize the
obligation OF that decision; and 1
am not willing, by the admission of
any attorney at its bar, to make my
Court the medium through which the
will of the Legislature, and the man
date of the Supreme Court of my State
are to be set ut naught.
The motion is, therefore, overruled, i,
and to prevent all future misapprehen-
sion, 1 shall cause the following order
throughout this circuit.
Ordered, that here after no attorney
shall be admitted to the bar of any
Court in this Circuit; who Is known In
this Court to be in partnership in the
practice of law, with any attorney who
cannot take the test-oath prescribed by
thelaw of this State; and that any at
torney heretofore admitted to such bar,
who shall hereafter form or, If already
formed, shall hereafter continue such a
partnership, shall, If practically known
to the Court, be disbarred therefor. it
NoTE-On the same day, but after the
above decision had been rendered, Cap
tain Sperry produced in open Court a
written dissolution of all partnership
between himself and Mr.. Price, and
renewed his motion for admission to
the bar, which was then allowed.
A BOYS FIRST CoMPosrTIoN.- The
iIeTre Haute, Qnd). Album gives the
following essay on "The Ok" from one
oi us young contributors, just as it