480 between whom there is no distinction in these public attorneys, or attorneys at law, this country, proves the same thing to my in order to ensure a due degree of probity apprehension. They are subject to penal- and knowledge in their profession, ties to which no private citizen could possi- indispensable to persons acting in that bly be subjected. Let a single example character, none are permitted to act as such suffice: the lawyers practising in the In- but those who are allowed by the Judges to ferior Courts may demand for an opinion be skilled in the law, and certified by the or advice, where no suit is brought, or Court of the County of their residence to be prosecuted or defended by the attorney persons of honesty, probity and good degiving such advice, but not other meanour. As a further guard against imwise, one dollar and sixty-seven proper practices in their profession, they cents; those in the General Court three dol- are required to take the oath prescribed by lars and fifty-eight cents, for advice, the act upon this subject. But for the under the same restrictions. And every injury arising to the public in general lawyer, exacting, taking, receiving or de- from the want of skill in the profession, manding any greater fee, or other reward, and the danger of abuses on the part of is subjected to a heavy penalty. Under persons whose profession peculiarly enables what colour or pretext could the Legisla- them thereto, no legislative inference would ture impose a penalty on any other than a be necessary to distinguish these public public officer, for demanding and receiving attorneys from the private attorneys before a hundred or a thousand dollars, or any mentioned; nor, on any other ground, other sum whatever, for giving his advice would it be just to abridge the general to any person willing to pay for it? right of our citizens to employ any person If, then, the office of an attorney or whatsoever, as their attorney, at their counsel at law be a public office, it must pleasure. Having obtained the sanction be an office or place under the Com- of these two tribunals, touching these two monwealth; which brings it within the particulars, an attorney is licensed or alwords of the act. It matters not by lowed to practise; and the Courts have also whom the appointment may be conferred, a continuing control over them, with power or in what manner the investiture is to revoke their licenses for unworthy pracmade: whether the Legislature, the Execu- tices or behaviour: But the licensing tive, or the Court appoints or admits to Judges cannot be said to "elect" or "apan office, the office or place is held or point" an attorney: He can, perhaps, only exercised under the authority of the be said, to be "appointed" by the particuCommonwealth. lar clients who, after he is licensed, may On the point of unconstitutionality, I severally employ him. This result is ennever have doubted, nor ever shall contro-tirely justified by a view of the act "convert, the power of this Court to consider cerning attorneys at law and counsel," and decide whether any act of the Legisla-1 Rev. Code, 96, in which these functionture be contrary to the Constitution of the aries are nowhere said to be "elected" or State, or of the United States or other-"appointed," either by the government or wise. My reasons and opinions on this the licensing Judges, nor are their funcsubject have long been before the public. I shall not, therefore, repeat them. But on the present occasion, I have not felt, nor do I feel, the smallest doubt of the constitutionality of the act in question; the object of which appears to me the prevention of a great moral and growing evil; and the provisions of it, so far as I have had occasion to consider them, well calculated to advance the benefit of society, and suppress the evil. tions anywhere called or designated as "offices" in the act, except in the form of the oath prescribed to be taken; and even there, that term may well be taken in a general and extended sense, as synonymous with "duty." The act, it is true, prescribes an oath to be taken as aforesaid, previous to being allowed to practise; but that can only be considered, as I have before said, as an additional security for the good conduct of the attorney: It would be too much to say, that this single circumstance of precaution (any more than those of the I therefore feel no reason to depart from the opinion which I first delivered, that the oath prescribed by that act must be taken by every gentleman who may wish to 482 practise in this Court, previous to his admission. JUDGE ROANE. I had seen cause to doubt of the correctness of the sudden and off-hand opinion given in this case, long before I had heard Mr. Leigh's argument. That opinion was formed and delivered upon an insulated view of the subject, and under circumstances which precluded a due consideration of the question. I shall ever deem it more honorable, as it is, undoubtedly, more useful, to retract than to adhere to a hasty or incorrect opinion. 481 *An attorney is defined to be one who is set in the place of another, and he is either public, as an attorney at law, or private, as being delegated to act for another, in private contracts or agreements, (1 Bac. 287; Co. Litt. 52.) With respect to license and certificate of the County Court *before mentioned) shall exalt that functionary into an "officer," when he is neither said in the law to be appointed" to any office, nor to hold any office, and when he receives no salary or emolument, except the fees which individual citizens may please to give him. If this single circumstance should be construed to have that effect, it might be equally argued to have a similar effect, in relation to jurors, or others who are obliged to incur the obligation of a similar sanction, before they are permitted to officiate. It is not necessary, in this case, to consider whether, and in what degree attorneys are considered in this country (as they are in England) officers of their respective Courts; though it is easy to see that an attorney, in this country, not having as many privileges as the English attorneys, in consideration of which, that character is not, therefore, come up to the desideratum there holden to attach, a difference may of this act; they are not officers under the probably exist in this country, in this government of the Commonwealth. There particular; nor is it necessary to consider is no just ground on which we can erect, the operation of the act, as relative to the by implication or construction, into governAttorney-General and his deputies, and mental officers, those who, in England, are other attorneys for the Commonwealth, not exalted to that character, and who, in who are all "elected" and "appointed" the only books and doctrines handed to us to their several officers, and receive an on the subject from that country, are held, annual salary for their services. Even ad- at most, to be mere subordinate officers of mitting, therefore, that attorneys are, in their respective Courts. But, if attorneys some sense, and in some degree, officers could be even considered as officers of the of their several Courts, as they are held government, they do not hold an office of to be in England, the question still recurs, profit or emolument under the government; are they officers within the meaning of (or, in other words, a lucrative office ;) otherthe act to suppress duelling? wise they would have been excluded from a seat in the Legislature by the provisions of the Constitution; which has never been done nor attempted in relation to mere attorneys, however it may be as to those who are "appointed" to prosecute for the Commonwealth, and receive a salary therefor. This section, therefore, relating only to persons "elected" to office, which attorneys are not; to persons who are officers under the government of the Commonwealth, in which *predicament attorneys do not stand; or to persons holding lucrative offices, which has never been considered as being the situation of mere attorneys at law, however gainful their practice may be, does not extend to persons of that character. However laudable the object of the act to suppress duelling may be, it is still a highly penal law, and must be construed strictly. It is unusually penal, if not tyrannical, in compelling a person to stipulate upon oath, by the 3d section, not only in relation to his past conduct, and present resolution, but also for the future state of his mind, and his future conduct, with respect to the offence in question, under all possible circumstances; a stipulation which many conscientious persons, however prepared to take the oath as it regards the time present, might well hesitate to enter into. Thus premising that this act is highly and unusually penal, I will, under the influence of the rules for construing penal statutes, proceed to apply it to the case before us. In making a construction upon this act, we must have an eye to every part of it; we must particularly have reference to the 2d section as well as the 3d; they both relate to precisely the same offence, (the giving or accepting a challenge,) 483 and go to the disability of the same persons only. They differ only in this, that the last clause goes beyond the former, in requiring a pledge that the persons therein contemplated will never, in future, be engaged in duelling. The 2d section declares that a person accepting a challenge, &c. "shall be incapable of holding or being 'elected' to any post of profit, trust, or emolument, civil or military, under the government of this Commonwealth." It relates as well to persons now in office, as to those to be elected thereto, and we are to construe those of the former class, designated under the term "holding," as standing on a common foundation with the latter, i. e. that the former must have been elected as well as the latter must, of necessity, be elected. This part of the clause, in both its branches, excludes attorneys at law, who, I have endeavoured to shew, are neither "elected" nor "appointed" to office, but are merely permitted to practise, by those who are constituted by law judges of their character and qualifications respectively. Again, this clause only extends to those who hold "a post of profit, of trust or emolument, civil or military, under the government of this Commonwealth.” Admitting (which is the most that can be granted) that attorneys are to be considered as "officers," they are only considered, even in England, as I have before said, as officers of their respective Courts. (1 Bac. 287.) They do 484 The phraseology of the 3d section varies somewhat from that of the 2d; but it is only a variation in words, not in substance. The office or place which it contemplates is one which equally requires an "appointment;" and is to be an office or place "under the Commonwealth," and not under an individual Court of Justice. These criteria exclude attorneys at law, as completely as those contained in the former clause under a varied form of expression. In addition to this, the words of the oath itself prescribed by this clause, "during my continuance in office," seem to indicate those public offices which are held by commission, or appointment, and are wont and proper to be resigned; they do not naturally apply to a function, which is never resigned or formally given up, which it is the right of one citizen to exercise at the request and for the benefit of another, and in respect to which the regulating hand of the Legislature has only interposed, for the salutary purposes before mentioned. This construction of the duelling act, in this particular, is both supported, as aforesaid, by the cotemporaneous and continued construction by both houses of Assembly, admitting attorneys to a seat in the Legislature, notwithstanding the provisions of the 14th section of the Constitution excluding therefrom those who hold lucrative offices; and by the construction upon the act of December, 1778, c. 37, (1 Rev. Code, p. 40,) and that of January, 1799, (1 Rev. Code, p. 392,) disabling certain officers of the general government from holding offices under the government of this Commonwealth. By the last of those acts, it is enacted, that all persons holding or accepting "any office or place, or any commission or appointment whatsoever, civil or military, under the authority of the United . pra lied with rcise, accom asure: ac .sume, as cftem as sient, without any conduct in song. rding of the latter seserinces, to my mind. tners of the law were not lation of the Legislature. by the oath, after sweating ..not been engaged a be.. or accepting a challenge : fgat rng fighting a duel, or is asy anner in violation of the act, since ssage thereof," is further to swear. he will not be so concerned, Erecty rectly, in such duel, during ri DOGance in office;" which, in my concep has no allusion to practitioners of the but, admitting they are comprehended the act, it has, or ought to have, a proective, and not a retrospective, operation; between whom there is no distinction in these public attorneys, I therefore feel no reason to depart from the opinion which I first delivered, that ti oath prescribed by that act must be tak by every gentleman who may wish practise in this Court, previous to his mission. JUDGE ROANE. I had seen caus doubt of the correctness of the sudden off-hand opinion given in this case. before I had heard Mr. Leigh's arg That opinion was formed and de upon an insulated view of the subjec under circumstances which preclude consideration of the question. I sk deem it more honorable, as it is, edly, more useful, to retract than t to a hasty or incorrect opin 481 *An attorney is defined t who is set in the place of ar he is either public, as an attor or private, as being delegated another, in private contracts or (1 Bac. 287; Co. Litt. 52.) Wi point" cannot affect officers of any description, pointed to office prior to the passage of That act; which I construe as the phrase gy of the clause had been thus: ""every person, who, after the passing of this act. shall be appointed to any office, civil or muitary, under this Commonwealth, shall ake the oath, &c. as their prescribed.” and I cannot conceive that a practitioner of the law of nine or ten years standing, qualifying to exercise his profession in a Court where he had been umised to practise, can be an appointment tam uffice, civil or military, under the Commonwealth.” I am, therefore, of opium than Mr. Leigh may be admitted to practise at this bar without taking the oath prescribed by the act to suppress duelling.. Mr. Leigh was therefore animed withat taking the oath. *Austin's Administratrix v. Whitlock's Executors. Saturday, October 2, 18M 1. Sealed Instruments-Scroll-Necessity of Recognition in Body of Instrument*-A scroll annexed to a signature is not sufficient to make a sealed instrument, unless it appear, from some expression in the body of the instrument that it was intended as such. *Sealed Instruments-Scroll-Necessity of Recognition in Body of Instrument.—This subject has been discussed at length in the Virginia and West Vir nia authorities collected in foot-note to Clegg v. messurier, 15 Gratt. 108; foot-note to Parks v. wlett, 9 Leigh 511; monographic note on "Bonds" ended to Ward v. Churn. 18 Gratt. 801; mono " the of-Case at scroll annexed to the signature: but as it was not expressed on the face of the said writing, that that scroll *was knowledged by David Whitlock as and it was not evidenced, as such, attesting witness, who was dead, his hand-writing was admitted,) endants moved the court that the writing should not go in evidence to ury; which motion being overruled, a of exceptions was filed. The Jury found verdict for the plaintiff for 790 dollars mages; and judgment was accordingly tered; but, on an appeal to the District Court holden at Richmond, was reversed; and judgment entered for the defendant; whereupon the plaintiff appealed to this Court. id of ob iged pman e said by him uence of o become purchase e County of The Peyton Randolph, for the appellant. County Court decided correctly in receiving the writing in question as a sealed instrument; a scroll being sufficient by virtue of the act of 1789. (a) In the case of Baird v. Blagrove, 1 Wash. 170, (which seems against me,) the agreement was dated before the law giving scrolls the same validity as seals, and Jones & Temple v. Logwood, 1 Wash. 42, is an authority in my favour; for it does not appear that in that case the words, "in testimony whereof I have affixed my seal," &c. were inserted in the body of the instrument; yet the scroll was decided to be sufficient. Wickham, contra. I admit that, where a party affixes a scroll by way of seal, it is good as such at common law: for the act of Assembly was only in affirmance of the common law. But here there is no proof that the scroll was intended as a seal. his said unid in that case writing obligaid Austin, the eyed to him the John Garland of id land, for and in horse delivered to But, putting this objection out of the the said Austin, the oresaid. The breach question, no action can be maintained at law on this paper. The covenant is void, said David, in his as being impossible; and, if it were possiFor had the defendants, ble, is against law. One man cannot conhough often requested, e said Austin, in his vey to another his interest in a suit. A the plaintiff, since his chose in action, at common law, is not asrest of him the said David signable. The suit itself cannot pass by a nor had he or they con- tion of the contract, but it is to be underthe said Austin the right stood merely as an agreement that Chapeyed to him the said David in Garland, of whom he the man Austin should have the benefit of the ought the said land as afore-suit, this writing was sufficient of itself, ie or other of which he the said and there was no breach. life-time, and the defendants, ath, ought to have done, accord⚫ form and effect of his said writatory." fendants, without craving oyer, 'conditions performed," and, issue joined, the plaintiff, at the trial, i in evidence a writing corresponding that described in the declaration, exthat it concluded, "as witness my hand 22d day of February, 1791," and was ed, "D. Whitlock," with a written -phic note on "Deeds" appended to Fiott v. Com., .ratt. 564. on the point, the principal case was cited in Cromweil v. Tate, 7 Leigh 306; Parks v. Hewlett, 9 Leigh 15, 519; Clegg v. Lemessurier. 15 Gratt. 112, 113; Smith v. Henning, 10 W. Va. 631; Keller v. McHuffman, 15 W. Va. 78. *Covenant-Declaration.-See monographic note on Covenant, The Action of" appended to Lee v. Cooke, 1 Wash. 306. conveyance. If this be not the construc The covenant is also against law: for, if not champerty, the first part was certainly maintenance, and the second, or alternative part, was in violation of the act against there being no averment in the declaration conveying or taking pretenced titles; (b) that Whitlock, who covenanted to convey, was in possession of the land. 489 *Indeed, the contrary is to be inferred from the agreement; and such an agreement is not binding in law or equity. 2. The declaration is radically defective; containing no averment that Austin lost the benefit of the suit, (in which event only the land was to be conveyed,) and setting forth, in fact, no cause of action. (c) Randolph, in reply. If a scroll is a seal, per se, it must be so, though not ribed as such. As to Mr. Wickham's obje (a) 1 Rev. Code, p. 112, s. 36. 1 States, whether any pay or emolument be attached thereto, or not" shall be "incapable of being elected to, or of holding any office, legislative, executive or judicial, or any other office, place, or appointment of trust or profit, under the government of this Commonwealth." Although these words are undoubtedly as extensive as those occurring in the duelling law now before us, it has never been pretended (although, if attorneys when they practise in the 485 *State Courts thereby become officers of the Commonwealth, they equally become officers of the general government when they practise in the Federal Courts) that the attorneys practising in the latter Courts cannot also practise in the former. On the contrary, the sanction of this Court, as well as of all the other Courts in the Commonwealth, has been given to this permission; and thus, a construction has been universal, in this country, in cases entirely analogous to the one before us; which, as well as those mentioned by Mr. Leigh, upon analogous cases in England, completely settles the present question. My opinion, therefore, is, that a mere attorney at law, or counsel, is under no obligation to take the oath in question previous to his being admitted to practise in the Courts of this Commonwealth. prescribed, I cannot but consider it as a penal statute, and, as such, must give it a strict interpretation. It appears to me, therefore, that practitioners of the law are not comprehended in the act, under these words; "every person who shall be appointed to any office or place, civil or military, under the Commonwealth, shall, in addition to the oath now prescribed by law, take the following oath," &c. The practice of the law is a profession which every citizen of the State, having complied with certain requisites of the act of 1792, c. 71, may take up, engage in, and exercise, according to his own will and pleasure; and which he may lay down, and resume, as often as to him may seem convenient, without any responsibility for his conduct in so doing. The language or wording of the latter sentence in the oath, evinces, to my mind, that the practitioners of the law were not in the contemplation of the Legislature. The officer taking the oath, after swearing "that he hath not been engaged in a duel, by sending or accepting a challenge to fight a duel, or by fighting a duel, or in any other manner in violation of the act, since the passage thereof," is further to swear, that he will not be so concerned, directly or indirectly, in such duel, during his continuance in office;" which, in my concepAs to the question of the constitutionality tion, has no allusion to practitioners of the of the act to suppress duelling, the forego-law: but, admitting they are comprehended ing view of the case renders it unnecessary in the act, it has, or ought to have, a profor me to say any thing upon it. I do not spective, and not a retrospective, operation; see, however, at present, that it can be and cannot affect officers of any description, deemed unconstitutional, as it relates to the appointed to office prior to the passage of qualification of attorneys at law, or counsel; that act; which I construe as if the phraseunless, indeed, it be on the broad ground ology of the clause had been thus; "every of the injustice, if not tyranny, of compel-person, who, after the passing of this act, ling a man to swear, in advance, that he will not for a given time do or forbear to do any given act; a thing which tender and scrupulous consciences, however resolved at present, might well hesitate to do. With respect to any questions which may arise upon this act in future, in relation to persons elected into the Legislature or the privy council, touching the power of the Legislature to abridge and circumscribe the number of those from whom the people have reserved to themselves the right to make their elections into those important stations; they will remain to be decided by the proper tribunals when they occur, upon full and solemn deliberation; whether the act before us falls within this description, and whether it be censurable, or not, on the ground of abridging the just and con- 487 stitutional rights of the people, through the medium of an agent, who as yet has committed no offence whatsoever, when, shall be appointed to any office, civil or military, under this Commonwealth, shall take the oath, &c. as therein prescribed." And I cannot conceive that a practitioner of the law of nine or ten years' standing, qualifying to exercise his profession in a Court where he had been unused to practise, can be an appointment to an "office, civil or military, under the Commonwealth." I am, therefore, of opinion, that Mr. Leigh may be admitted to practise at this bar without taking the oath prescribed by the act to suppress duelling. Mr. Leigh was therefore admitted without taking the oath. *Austin's Administratrix v. Whitlock's Executors. Saturday, October 27, 1810. undoubtedly, the Legislature only meant. Sealed Instruments-Scroll-Necessity of Recognition to impose a penalty upon the offender himself; will be then to be considered and decided. At present I am very far from having any conclusive opinion upon it. JUDGE FLEMING. The act under consideration being a compulsory law, (how ever salutary it may be,) imposing on 486 the officers *of government an oath unknown to the former laws of the state, or of the United States, although there be no pecuniary penalty inflicted on those who refuse to take the oath therein in Body of Instrument.*-A scroll annexed to a signature is not sufficient to make a sealed instrument, unless it appear, from some expression in the body of the instrument that it was intended as such. *Sealed Instruments-Scroll-Necessity of Recognition in Body of Instrument.-This subject has been discussed at length in the Virginia and West Virginia authorities collected in foot-note to Clegg v. Lemessurier, 15 Gratt. 108: foot-note to Parks v. Hewlett, 9 Leigh 511; monographic note on "Bonds" appended to Ward v. Churn. 18 Gratt. 801; mono |