opinion; and I know not, (if this be fo) whether it may not affect fome of your lordship's on the bench. An attorney and his client are confidered in law as one perfon, his power is unlimited in the cause, and his client is abfolutely concluded and bound by every act which he doth in the caufe. In Carth, 412. an attorney in a caufe fubmitted to an award without the direction or confent of his client; one of the queftions in that cafe was, whether the award fhould not be fet afide, because the attorney fubmitted and consented to it without the direction or consent of his client; but the court held, as to that point, that the client was bound by the acts of his attorney. In the cafe of Clifton verfus Grey, Mich. 31 Geo. 2. B. R. the court was moved for a new trial because the defendant's attorney neglected to appear and make defence at the trial; but a new trial was refused; for they held the client was bound by the verdict, that the attorney was anfwerable to his client for negligence, and that the attorney is confidered as the party himself. The connection between attorney and client is confidered in law, as nearer than that between baron and feme; the former being confidered only as one fingle perfon; the latter, as two fouls in one flesh. It is faid by my Brother Davy, that Mr. Norwood is to be confidered in this cafe as a mere volunteer; but I deny it; for, with deference to the court, every attorney, by his oath, is bound to act as an attorney according to the beft of his knowledge and ability for any of the King's fubjects by whom he may be retained, in cafe he be not firft retained on the contrary fide; and he is not totally at liberty or a volunteer whether he will act as an attorney or not while he continues upon the roll of attornies; and after a client has retained an attorney to fue or defend for him, he cannot change (fuch) his attorney without leave of the court. My Brothers have not produced one cafe to fhew that an at torney in a cafe like this is anfwerable in trespass vi et armis many occafions for bringing actions like this must have happened, but as none fuch as this have been brought, I may well fay this action doth not lie against Mr. Norwood; and if it doth not, judgment must be arrested. As to damages, if the jury have mistaken the ground they went upon in that matter, they have done wrong in giving fuch large damages for a mere flip or mistake committed by an attorney, without any malice whatever proved; any judge of B. R. at his chambers, would have ordered Mrs. Barker to have been been discharged out of prison the next day, and so your lordship told the jury at the trial. Serjeant Glynn on the fame fide for the defendants-I fubmit, with deference to the court, that the facts given in evidence at the trial did not fupport this action against Norwood one of the defendants; if fo, the verdict against both defendants whereby intire damages are given againft them jointly is erroneous. The action is not maintainable against an attorney; I reft my objection upon this, viz. that it doth not appear that Norwood was an actor as in his own perfon. It is true he fued out the capias ad fatisfaciendum for his client, and delivered it to Armfrong the theriff's officer who executed it, and I own that in trefpafs all are principals; but Norwood's acts as attorney are the acts of his client in confideration of law; the orders or directions he gave to Armfrong to arrest and take the plaintiff in execution, were the orders and directions of the party his client, the sheriff or the court. It is objected that Norwood fued out the writ; I anfwer, that fact doth not make him liable in an action of trefpafs vi et armis; but only in an action of trefpafs upon the cafe; and in delivering the writ to Armstrong he only acted as a medium or inftrument by the direction of his client or the command of the court; his act may be compared to the act of a letter-carrier or meffenger from the poft-office, who delivers a letter directed to J. S.; if what is contained in the letter be a trefpafs, certainly the messenger is not liable in trefpafs; his conveying the command of the principal is nothing, he must do more to become trefpaffer. So, Norwood being a mere officer, afted rightly in accepting a retainer, and is not a mere volunteer; having accepted a retainer, the law acts upon him, and he then becomes bound to do all acts in the cause for his client, to whom only he is anfwerable for negligence or mis-feafance in an action upon the cafe; and this follows from the nature of an attorney's office, his duty to the court and his client; I fay, with great deference to the court, when a man acts as an attorney, he is only anfwerable to his client for fuch confequences of his acts as are injurious to his client. In no cafe is an attorney answerable for a mat ill founded action, the client only fhall be amerced for false clamor; amercements and fines always fall on the client, not on his attorney. As to the damages; I confefs the measuring thereof is the proper province of the jury; but in this cafe the jury feem to have BB 4 mif. This argu ment was in Michaelmas term laft. mifapprehended your lordship, and have been mifled; for it is plain there was a time when the imprisonment became the voluntary imprisonment of the plaintiff herself. Lord Chief Justice De Grey-This argument has produced a queftion of great confequence, fo let the cafe ftand over for a few days to be confidered; the cafe did accordingly ftand over until the latter end of laft Michaelmas term, and was then further adjourned until this term, when the judgment of the court was given for the plaintiff to the following effect Lord Chief Justice De Grey-After having ftated the cafe, and the evidence given for the plaintiff at the trial of this caufe, as reported above, proceeded to give the judgment of the whole court for the plaintiff. The question is, Whether an action of trefpafs vi et armis can be maintained against Mr. Norwood the attorney as well as against Mrs. Braham his client, for wrongfully and illegally caufing the now plaintiff Mrs. Barker to be imprifoned; for if fuch action cannot be maintained against him, as well as against his client Braham, judgment ought to be arrested, because 150. intire damages are given against them both, which cannot be fevered by the court. But we are all of opinion that trefpafs vi et armis well lies against both the defendants. It is certain the plaintiff hath received great injury in her perfon and liberty, because she hath been imprifoned by and under colour of a capias ad fatisfacien dum illegally taken out against her, which is the fame thing as if fuch writ had never been taken out at all. A man had a judgment, and execution executed; and afterwards the judg ment was fet afide for being unduly obtained and reftitution awarded, and afterwards the defendant brought trespass against the plaintiff in the first action for taking the goods, and it was adjudged that it well laid against the party, for by the vacating of the judgment, it is as if it had never been; and not like a judgment reverfed by error, fo is 1 Lev. 95. Turner verfus Felgate. T. Raym. 73. S. C. Carth. 274. Salk. 674. 12 Mod. 178. 2 Wilfon 385. 1 Stra. 509. T. Jones 215-A fheriff, or his officers, or any acting under his or their authority, may justify themselves by pleading the writ only, because that is fufficient for their excufe, although there be no judgment or record to fupport or warrant fuch writ; but if a stranger interpofes and fets the fheriff to do an execution, he must take care to find a record that warrants the writ, and must plead it; fo muft the party himself at whofe fuit fuch an execution is made. No trefpafs can be excused but what is inevitable; fee the cafe of Mr. Norwood has pleaded not guilty; he could not justify by a fpecial plea, because there is no record to warrant a capias ad fatisfaciendum against Mrs. Barker; nor could he have justified himfelf by pleading that he ignorantly fued out the writ, for ignorance is no excufe; but Mr. Norwood's defence is, that whatever remedy there is against him, it is not trespass vi et armis. It is true there may be circumftances which will excuse in trespass vi et armis, as where a man goes peaceably into the house of another to demand a juft debt; or goes to make a visit to another where he is not forbidden to go; but in the prefent cafe, the acts done by Mr. Norwood, cannot be qualified, excufed or juftified in any way whatsoever, no man can fay that Mrs. Barker has not been illegally imprifoned, or that Mr. Norwood was not an actor in causing fuch imprisonment. But it is faid, here is no injury done by Mr. Norwood the attorney; for he acting as fuch, is only a fervant to his client; and by fuing out the ca. fa. and delivering it to Armstrong the fheriff's officer, and ordering him to take and arreft Mrs. Barker thereupon, he only acted as a medium or inftrument by the direction of his client, or the command of the court; in anfwer to this all the books fay, that all are principals in trefpafs. Co. Lit. 57. a. 2 Inft. 183. procuring, commanding, aiding or affifting makes one a trefpaffer. Bro. Trefpafs, pl. 148, 232, 307. 1 Salk. 409.A fervant keeping the key of a room knowing that a man is imprifoned therein is a trefpaffer; one affenting to a trefpafs after it is done is a trefpaffer. Bro. Trespass, pl. 133. 256, 265. 2 Hawk. Pl. Coron. 312. To apply what is faid and laid down in the books upon this fubject to the prefent cafe; they fay, whoever procures, commands, affifts, affents, &c. is a trefpaffer; here, the client commands the attorney, the attorney actually commands the sheriff's officer; the real commander is the attorney, the nominal commander is the plaintiff in the action, fo attorney and client are both principals. It is clear that a writ of deceit will lie against an attorney for Cro. Jac. acting wrongfully in his character of an attorney to the damage 694. pl. 7. of another. F. N. B. 4to edit. 217. Writ of Deceit. Glanvil in his eleventh book throughout, treats of appointing attornies in the places of their clients, ad lucrandum vel perden dum 86 dum in pleas depending in courts of justice. "Notandum præterea, (fays the book 11. cap. 1 fol. 88.) quod poteft quis in curia "domini Regis ponere loco fuo alium ad lucrandum vel perdendum pro eo etiam in placito quod in alia curia habet. Et præcipietur "quod idem in curia ipfa recipiatur loco alterius per tale breve. (cap. 2.) Rex vicecomiti, vel alio præfidenti curia illius falutem ; "fcias quod N. pofuit coram me vel jufticiariis meis R. loco fuo ad "lucrandum vel perdendum pro eo in placito illo quod eft inter eum "et B. de una carucata terra in illa villa, vel de alia aliqua re "nominata; et ideo tibi præcipio quod prædictum R. loco ipfius N. in placito illo recipias ad lucrandum vel perdendum pro eo. Tefte, &c." 66 The ancient books of Britton and Bradlon alfo treat of at tornies; and various ftatutes, rules, and regulations, have been made touching attornies from ancient time down to the prefent, not neceffary to be particularly taken notice of, but it is remarkable that in the reign of Hen. 4. (nearly 400 years ago) ate tornies were not fo learned in the laws as before that time, for there is a ftatute of the 4 Hen. 4. cap. 18. intitled, the punishment of an attorney found in default, which fays, "That for fundry damages and mifchiefs that have enfued before this time to "divers perfons of the realm, by a great number of attornies ignorant and not learned in the law, as they were wont to be before this time; It is ordained and established, that all the "attornies fhall be examined by the juftices, and by their dif "cretions their names fhall be put in the roll, and they that be 66 good and virtuous, and of a good fame, fhall be received and "worn well and truly to ferve in their offices, &c. &e. An attorney has authority by his being conftituted attorney to remit damages found by a jury. 1 Salk. 89. his client is bound by his acts. If land was loft by default, by neglect of the attorney, the only remedy the party had was against his attorney in a writ of deceit. 17 Ed. 3. 12. and many other books. An attorney is protected from maintenance; for a writ of maintenance doth not lie against him. 34 Hen. 6. 26. but maintenance may lie against his client. An action was brought against four men, viz. two attornies and two folicitors for being attornies and folicitors in a cause against the plaintiff in an inferior court falfo et malitiofè, knowing that there was no caufe of action against him: and alfo for that they fued the plaintiff in another court, knowing that he was an |