The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-12-25

using tho name OF the said plaintiff in good
faith. but. on tho contrary thereof in connec-
and counsel Tor nt-law Of the State OF Vermont
Is endeevorinR wrongfplly and 'wickedly 70 eX-
tort money from the defendants, COrneia NJ
Stewart and Henry Hilton, by means Of such
action and the use Of the plaintiffs name.
As. general rule when tho right OF an attor;
opT party the attorney ,s e ropa
table member Of the law, the Court will not, un-
less the action be one for the recovery Of land.
require proof Of the authority TO be produced.
hut the right OF the Court TO require its produc-
ton In, all cases Is undoubted. and II will DO OK
ercised when, in Its Judgment the ends OF JUS
tce demand H.. In this case. however, party
who declares his namei s used without author
ity inyokes the aid Of the Court. Very clearly
II ne hgs any interest in the property which is
affected by the action he has the right to select
the attorney who will enforce It., and one whom
that interest and subject tho party to tho coets
and expenses OF failure. In such case. the
is unauthorized has the right, common TO all
mankind to ask the Court to redress a Rrev-
ance. AZ tho attorney has instituted suit
plaintiffs. and ms his right to do so is challenged
orney %u wr2sS Establish ne P rsR
In holding that the burden OF proof rests upon
tho attorney. tho ordinary rules Of logic and
authority or right derived from another must.
when II is questioned prove II. and whethersuc
claimed authority or right relates to the use OF
anothers property or name, the rule Is tho
same. The controversy IL between men. and
though one is layman and the other an at
torney Of this court, the Court cannot presume,
when an issue thereon is directly made that
tho latter has acquired rights and powers over
Which nav subject Kim ' to great "ss and injury
without affirmative proof that such rights and
powers have been conferred, Tho use OF Alex
ander Stewards name ms plaintiff IN an action
must. Rs we have already intimated. affect his
property. Mr.. kneelnnd claims that Mr.. Stew
art has authorized the act and tho authority
m lp mr.
In tho examination Of the first point which
this motion ,prrsents-the employment Of
kneeland by Stewart 10 bring this actlon-be-
fore considering the great mass Of affldnvits
and papers submitted. II will be well 10 discuss
the question whether; conceding all thai Mr.;
authority TO institute and prosecute this action.
Mr.. Kneeland's claim is. that he saw letter
published in the Nec York Herald Of June 7.
1876. purportinR to be from the said Alexander
Stewart TO Judge Hilton. in which claim OF
being cousin TO the dead merchant II made
by tho writer. whcreupon, on the 9th day OF the
same month. ne wrote TO the said Stewart ut his
residence in Proctorsyi!!e. Vt. informing
him that he" kneeand. was engaged or ro-
tained for other heirs in prosecuting their
rights to tho estate, and would he" Alexander,
:, like to, join II he would, to send, him,
II is further claimed that Alexander Stewart, on
the reception Of this letter from Kneeand, in
company with his son. Robert q. Stewart. called
upon the before mentioned Clark II. Chapman.
Ut his office in Proctorsville, showed him the
kneeland letter, and authorized Chapman, 20
behalf: which facts Chapman communicated
To- kneeland by letter dated July G, 1876. copy
Of the alleged letter from kneeland TO Stewart Is
not produced. and It's reception 10y him the lat
ter flaty denies but the one claimed To- have
been written by Chapman TO kneeland. on the
9th day 81 July. 1876. Is exhibited. and forms
part Of the papers read upon this motion,
careful perusal Of such letter however, fails 10
disclose any direct request or authority to Knee
land 10 commence any proceedings whatever in
behalf Of Mr. Stewart Who Stewart IL and his
claim to relationship with the former New York
han out a Ia laI In attfk
letter our CLIENT but not u word Ia said
about any action whatever. nor IT. any power
expressly conferred to bring one. The Revised
Statutes 18th edition. vol. 3. page 573 sec. / 81
provide Any written request 81 such plaintiff
or his agent to commence such action. or any
written recognition ot such authority OF the at-
torncy 10 commence the same. duly proved by
the AFFIDAVIT Of such attorney. or other compe-
denc S'' OF such ha auiHSrty. This proysion ia
contained In Title ]. Of Chapter 5 OF Part Of the
Revised Statutes which chapter is entitled 'Ot
Ia entitled "Of the Action OF Ejectment." Is
the section we have quoted applicable to this
II has already boon stated that tho direct
prayer for relief in the complaint in this action
il to partition and divide the real estate Of tho
late Alexander T. Stewart among the parties
who are therein claimed to be his heirs at law.
Confesscdly. ~ has also been before said. the
property IL all held adversely by some OF the
defendants who claim under an alleged will OF
the deceased Mr.. Stewart, and to which no al
fusion whatever Ia made in the complaint. As
parent devise under Wbici the property is
claimed and held adversely. " il void" rs the
Revised Statutes 18th edition. vol. g. page 60.
sec. ~ expressly require. Z is very doubt
ful whether the action In It's present form.
without an amendment q the, complaint, can
sec. l. Florence agt. Hopkins. 10th y Y. 1872.
Assuming. however. that II can be. II Is very
cessful. must be that the heirs at law recover
the possession OF the property. and that tho
parties holding adversely under, the alleged
a Al 81 Tft4g n lhGl
and fact. then this action Il one for the recov-
cry " tho possession Of real estate adversely
identical with that which was formerly known
bv the name Of An Action OF Electment n" al
though tho ultimate relief sought is partition
among its owners. which. however. can only be
accomplished after their right 20 its possession
and enjoyment shall have been established 10y
n trial. There Is nothing, then. in the form or
character Of the action which prevents the full
application of the statute.
It may bc argued however that the section
we have quoted only declares and establishes
the character OF the evidence to be given when
the right ot an attorney to- institute the suit IL
previous sections ~. 10. IA prescribe the man
ner in which a defendant In eiectment may
compel tho attorney for the plaintiff 20 show
his authority 10 bring tho action; but the Ian
guage Of the fifteenth section Is general. and IA
decaratory OF the species Of evidence which
shall prove the power OF the attorney to bring
eiectment. From the general and broad words
used in the last mentioned section. tho conclu-
sion seems 10 follow that tho authority shall be
yious sections were inserted To enable the de-
PENDANT to avail himself Of its terms. II, "a be-
tween the attorney of the plaintiff and tho de-
PENDANT the former must produce a written
request Of such plaintiff or his agent 10 COM
mence such action. or written recognition
Of tho authority Of the attorney 10 commence
the same" why should less than this be re-
quirod as between attorney and clientY No rea-
son for the distinction is perceived and rs the
language OF the section itself covers a case like
the present and as II IL founded upon the gem
eral rule that all authority conferred over real
estate shall be evidenced by n writing. II is held
that Mr.. Kneeland, unless this section Of tho
statute is abrogated, must bring himself within
its provisions.
That nothing short Of written evidence ofthc
power to bring the action. before the adoption
~ the Code. would answer, was well settled
lMcDermott agt. DAWSON. Howard's Pr. Rep..
1914. In Howard agt Howard III Towards Pr.
Rep, SOY, II was held. - The provisions OF the
Revised Statutes In relation 10 the production
Of nm authority Of an attorney to commence an
action OF eIectment apply To- suits, under the
Code to recover land" Judge Hand. In that
case said. The statute requires q written re-
quest to commence the suit either by the plain
tin or his agent; or written recognition ~ the
authority of the attorney 10 do so y II. s.. 3u6l.
The authority Of this decision has never been
questioned and its s0undncss is expressly
recognized in Waits Practice lvol. l. pages 5Gl.
5G5l. and il must now be regarded as settled law.
As this action is In substance and fact one for
tho recovery " land. and ~ MIR. Knoeland has
no written authority 10 commence IL. or a writ