Henck v. Todhunter ( 1826 )

Buchanan, Ch. J.

delivered the opinion of the court. It is not the practice in this state to require a warrant of attorney to authorise the appearance of a defendant by attorney; the rules of practice, therefore, in England, in relation to that subject, are not applicable to the proceedings of the courts of this state.

But the party may, by the law and practice of the courts of this state, appear either in propria persona, or by attorney; and whenever the appearance of an attorney is entered on the record, it is always considered that it is by the authority of the party; and whatever is done in the progress of the cause by such attorney, is considered as done by the party,’ and binding upon him. And whether the attorney is faithful to his trust or not, is a matter between him and the party, his client, to whom he is responsible for the faithful discharge of his duty. When, therefore, an attorney on the record applies for permission to cause his name to be stricken out, it is presumed to be done at the instance, and by the authority of the party for whom his appearance has been entered. But it will never be permitted to a party, or his attorney, to obtain á continuance of a cause beyond the time allowed him by law, by striking out the attorney’s appearance at the term at which the cause stands for trial; otherwise, by collusion between client and attorney, the trial of a cause might be delayed without limit. Hence, though the court will, on application, permit the attorney’s name to be stricken out, considering him as acting on that very application as the attorney, and at the instance of the party, yet it will not be done to the prejudice of the other party, and the cause will be made to progress as if the appearance had not been stricken out.

In this case the cause stood regularly for trial, and it must be understood that the permission given by the court to the defendant’s counsel to withdraw his plea, was only to give way to another plea without delay, and that the rule then laid to plead over was virtually a rule to plead instanter, otherwise it would have worked a continuance for a cause not justified by law.

JUDGMENT AFFIRMED.