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criminal cases as well as civil.17 But that the knowledge sought to be iman exception to the rule that notice to puted related to the subject-matter of the attorney is imputable to the client the employment, and with this assumphas been held to exist, "where the tion it seems clear therefrom that, client, acting honestly and in good according to all cases, a client is faith upon information obtained from chargeable with knowledge acquired his attorney, institutes and prosecutes by his attorney in transacting the criminal proceedings against an- business in which he was employed. other," without knowledge of duress According to some courts, the knowlused in obtaining a confession from edge which will be imputed to the the accused, knowledge which the at- client has been thus limited; if the torney did have. 18

knowledge is not received in the It is assumed in the foregoing cases course of the employment, 19 or in the ing a client bound by knowledge of lee and communicated to her any facts his attorney, employed to prosecute in connection with the deed to the claims against a county, of a repudia- land, except in so far as his represention of the claims by the county, so tation that the deed conveyed title to as to start the Statute of Limitation the land.” running.

Tisdale v. The H. W. Almy (1882) Bradford v. Malone (1908) 49 Tex. 4 Haw, 503. Notice to an attorney of Civ. App. 440, 130 S. W. 1013, holding a judgment is notice to the client. a client chargeable with the knowl- McCauley v. Butler (1902) 1 Ont. edge of his attorney that a judgment Week. Rep. 72, holding notice to a dehad been rendered against such client. fendant's solicitor of a claim for costs,

It is stated in Butler v. Morse notice to the defendant. (1891) 66 N. H. 429, 23 Atl. 90, that That notice to the attorney is notice “notice to the attorney, whether actual to the client seems to have been the or implied, is considered notice to the theory in the mind of the court, in client, and binds him, when the no- Equitable Securities Co. v. Green tice is in the course of the transaction (1901) 113 Ga. 1013, 39 S. E. 434; but in which the attorney is acting for there is no clear holding on this point. him."

See infra, note 34. Missouri, K. & T. R. Co. v. Bacon 17 Barnes v. Com. (1918) 179 Ky. 725, (1904) - Tex. Civ. App. 80 S. W. 201 S. W. 318, charging a defendant 572, and Missouri, K. & T. R. Co. v. with the knowledge of his attorney, of Wood (1913) Tex. Civ. App. - a separation of the jury. 152 S. W. 487, holding defendants See also People v. Duncan (1908) 8 chargeable with the knowledge of Cal. App. 186, 96 Pac. 414, supra, note their attorneys that an interest in the 16. claim in suit had been assigned to cer- 18Penney v. Johnson (1908) 142 Il. tain attorneys.

App. 634. In Dowdy v. Furtner (1917) Tex. 19 Neilson v. Weber (1901) 107 Tenn. Civ. App. — 198 S. W. 647, the court, 161, 64 S. W. 20, holding a purchaser in refusing to charge a mortgagee of the interest of an heir in the anwith the knowledge of an attorney cestor's estate not chargeable with employed to pass upon the title of the knowledge of debts, possessed by his mortgagor, of an escrow agreement in attorney. which he had been the depositary of Pacific Mfg. Co. v. Brown (1894) 8 the mortgagor, and another of deeds Wash. 347, 36 Pac. 273, holding a maexecuted in making an exchange of terialmannot chargeable with the property, states that there is no knowledge of his attorney, who drew foundation whatever for the claim the lien notice and prosecuted his that the knowledge of the attorney as suit to foreclose, of a mortgage foreto the escrow agreement became the closure suit which he was conducting knowledge of the mortgagee, when he against the property in favor of anafterwards employed him to pass upon other client. the title to the land. The court adds: A mortgagee who has brought an ac“The fact that the attorney pro- tion upon the note secured by his nounced the title regular was suffi- mortgage, which instruments were cient to cause appellee to be satisfied executed by an attorney in fact, is not, therewith, and it was not shown that in such action, chargeable with knowl. [the attorney) ever talked with appel- edge of the identity of the power of same transaction,20 the client is not af- as to the equitable title still remained fected thereby.

in the mind of the attorney, it did not But this has not always been held, need to be repeated to become notice and a client has been held chargeable to the creditor. In a subsequent Verwith knowledge of an attorney not de- mont case,22 the court, in holding a rived in the course of his employment. client chargeable with knowledge of For example, a creditor who employed a trust possessed by his attorney, states his debtor's attorney to levy upon that “if this knowledge comes to the land, the legal title to which was in attorney or agent while acting in anthe debtor, but the equitable title to other and different transaction, the which was in another, was held client and principal will be affected chargeable with the attorney's knowl- with notice." It is of course true, edge of the equitable title.21 This de- under the Vermont rule, that if the cision is based, in part at least, upon knowledge was acquired in transacta failure of the creditor to inquire as ing the business of the principal, or to the true state of the title. The was then acted upon by the attorney, court states: “But here, as in most principal is chargeable; thus, an atcases, it is certain the creditor, by the taching creditor has been held chargeslightest inquiry in the proper quar- able with the knowledge of its attorter, and in the quarter where one ney of a prior deed by its debtor, would naturally look, might have where the attorney made the deed and learned the true state of the title. The saw the record thereof, and, as attordebtor's attorney, who held the pos- ney for the creditor, examined the recsession of the estate for his use, knew ord thereof with a view to bringing of the claim of the cestui que trust, the attachment suit.28 and the ground of it. Any inquiry of Questions connected with knowledge him would have led at once to the dis- not acquired in the course of the emcovery of the real facts in the case. ployment most frequently arise in conThis was not done. But he was adopt- nection with knowledge acquired prior ed as the attorney of the creditor to to the agency or knowledge, in transmake the levy, and he was taken, of acting the business of another client, course, cum onere, that is, with his and these questions are discussed in present knowledge of the title. That subsequent subdivisions of this note. he was bound to communicate to the According to the majority of courts, creditors, as much as if he had origi- as hereinafter shown, the knowledge nally received it while acting as the which will be imputed is not limited to defendants' agent.” The court, how- knowledge acquired in the course of ever, seems to qualify the rule some- the employment, but extends to previwhat, by adding that, if the knowledge ously acquired knowledge, if such attorney, because of the knowledge of But see Constant v. University of a lawyer employed at the time the

Rochester, infra, note 72. mortgage and note were given, such

Ives v. Culton (1917) Tex. Civ. lawyer being no longer employed by

App. -, 197 S. W. 619, holding a judgthe mortgagee. Cartwright v. Everett

ment creditor not chargeable with the (1888) 7 Haw. 216.

knowledge of an attorney, derived in See further the cases in III. b and c, infra.

another transaction, of an unrecorded 20 Howard Ins. Co. v. Halsey (1853)

conveyance of the property of the 8 N. Y. 271, 59 Am. Dec. 478, holding judgment debtor. the knowledge of an attorney employed Bulpett v. Sturges (1870) 22 L. T. to foreclose a mortgage, of a convey- N. S. (Eng.) 739, 18 Week. Rep. 796. ance by the mortgagor of a part of the 21 Hart v. Farmers & M. Bank (1860) premises, not imputable to the mort

33 Vt. 252. gagees in a subsequent transaction after the foreclosure suit had been

22 Abell v. Howe (1871) 43 Vt. 403. dropped, in which the mortgagees re

23 Vermont Min. & Quarrying Co. v. leased a part of the premises from the Windham County Bank (1872) 44 Vt. lien of the mortgage.

489, 3 Mor. Min. Rep. 312.


knowledge is present to the mind of in the bankruptcy proceedings, is not the attorney when acting for the chargeable with notice of the proceed. client.

ings because of the knowledge of the

attorney who represented him in ob6. Knowledge not relating to the subject

taining the judgment, but who had no matter of employment.

authority to represent him in the When the knowledge does not relate bankruptcy proceedings, and is not, to the subject-matter of the employ- therefore, barred by the bankrupt's ment, the client is not chargeable discharge, within the meaning of the therewith. In one case,25 after ad- provision of 17 of the Bankruptcy mitting the general proposition that Statute of 1898 (30 Stat. at L. 550, notice to the attorney is notice to the chap. 541, Comp. Stat. § 9601, 1 Fed. client, the court continues : But it Stat. Anno. 2d ed. p. 708) that "a disby no means follows that because the charge in bankruptcy shall release a attorney is engaged in a particular bankrupt from all his provable debts suit that notice to him in reference except such as

(3) have not to a cause or proceeding with which been duly scheduled in time for proof he has nothing to do, and over which and allowance, with the name of the he has no authority or control, con- creditor if known to the bankrupt, unstitutes notice to his client.” It has less such creditor had notice or actual been held that a judgment creditor of knowledge of the proceedings in bank. a bankrupt, whose claim was not filed ruptcy.26 It is stated by the South

24 In Wyllie v. Pollen (1863) 3 De action, but which merely relate to the G. J. & S. 596, 46 Eng. Reprint, 767, motives and objects of the parties, or 2 New Reports, 500, 32 L. J. Ch. N. S. to the consideration upon which the 782, 9 L. T. N. S. 71, 11 Week. Rep. matter in hand is founded." 1081, the court expresses an opinion 25 Parish v. Hedges (1909) 34 App. that where the solicitor of a mort- D. C. 21, holding notice by a creditor gagor was intrusted by the solicitor of a decedent's estate, to attorneys of persons who were taking a transfer who are prosecuting a claim of the of the mortgage, with the duty of ob- estate against the Federal governtaining the execution by the mort- ment, but who have nothing to do with gagor of the transfer, such solicitor matters relating to the estate in the was not the solicitor of the transferees probate court, is not notice to the in such a way as to attract the opera- executrix, within the meaning of a tion of the doctrine of constructive no- statutory provision that no executor tice, but states that, assuming that or administrator who shall pay out assuch solicitor was the solicitor of the sets of the estate after one year from transferees, the transferees were not the date of his letter shall be answerchargeable with such solicitor's knowl- able for any claim of which "he had no edge of a judgment against the mort- knowledge or notice by an exhibition gagor, since the existence of the judg- of the claim, legally authenticated." ment debt was immaterial to the trans- In Larzelere v. Starkweather (1878) action, and consequently no duty de- 38 Mich. 96, there was held to be no volved upon the solicitor to divulge its evidence that the attorney whose existence to the transferees. It was knowledge was sought to be imputed accordingly held in this case that the to another was the attorney of such transeferees were not chargeable with other, at least, none that he was the notice, so as to postpone a further attorney in the particular transaction charge made by them upon the mort- in which notice was sought to be imgaged property, through other solici- puted; hence the imputation was detors, to the lien of the judgment. nied.

Lord Chelmsford in Eyre v. Burmes- 26 Strickland v. Capital City Mills ter (1862) 10 H. L. Cas. 90, 11 Eng. (1906) 74 S. C. 16, 7 L.R.A.(N.S.) 426, Reprint, 959, speaking of the general 54 S. E. 220. The attorney was inrule that knowledge of a solicitor is formed of the bankruptcy proceedings. imputed to the client, states: "But and was present at the first meeting of I am not aware that this imputed the bankrupt creditors. He testified knowledge has ever been extended to that he was present merely as a specmatters which have no reference to tator, and did not in any way particirights created or affected by the trans- pate in the meeting, and had no au

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Carolina court that “there is no doubt that the general rule is that notice to the attorney is notice to the client, but the knowledge of the attorney must be acquired while acting for the principal, and the information must relate to a matter within the scope of his agency, the theory of the law being that the agent is presumed to have communicated to his principal knowledge which it was his duty to have communicated, and which it is reasonable to suppose he did actually communicate."28 It has been held that notice to an attorney who defended a suit, of a general assignment of the thority to represent the judgment creditor in the bankruptcy court.

27 Chicago Sugar Ref. Co. v. Jackson Brewing Co. (1898) - Tenn. —, 48 S. W. 275, holding notice to the attorney not notice to the judgment debtor so as to render an attachment a lien inferior to the assignment.

It is stated obiter in Daniels V. Pratt (1880) 6 Lea (Tenn.) 443, that, "in general, notice to an attorney expressly employed to defend the action would not be notice to his client of the assignment of the judgment." The court further states with reference to the facts of this particular case, which involved notice to the attorney of a railroad company, that the question might depend largely upon the nature of the relation between the railroad company and the attorney, as to the duties required of the attorney by the course of business between them, or by the contract of retainer.

28 Knowledge of an improperly recorded mortgage on certain property, possessed by an attorney who "made" (whatever that expression may mean) a writ of attachment for a creditor, but who is stated not to have been the agent of the creditor in the attachment of the property, is held not imputable to the creditor in Tucker v. Tilton (1875) 55 N. H. 223.

In Saffron Walden Second Ben. Bldg. Soc. v. Rayner (1880) L. R. 14 Ch. Div. (Eng.) 406, the court, in holding that notice to solicitors or trustees of a mortgage of a reversionary share in the testator's estate was not notice to the trustee, states: "I am prepared, therefore, to say that, before a notice of this kind of a charge upon the property can be of the slightest

judgment obtained therein, is not notice to the client.27

c. Limited employment. In case of a limited employment it has been held that knowledge of the attorney, beyond the scope of the employment, is not imputable to the client.28 Thus, knowledge of an attorney, employed by a prospective purchaser of property to examine “an abstract of title and, from that,” give the client an opinion as to its sufficiency, that a suit in which it was attempted to establish a lien on the property was pending, will not be imputed to the client.29 The Minnesota validity, it must be given, if given to a solicitor, to a solicitor who is actually, either expressly or impliedly, authorized as agent to receive such notices, and I am of opinion that in this case the solicitors were not so authorized.” The solicitors in this case were employed by the trustees in all matters connected with the estate in which professional assistance was required, and at the time when the mortgage in question was executed they were acting for the trustees as executors of the estate, in a chancery suit to which the testator had been a party, and were also receiving on behalf of the trustees, and distributing among the persons entitled, the interest on a considerable mortgage which formed part of the testator's estate, and which they had been employed as solicitors in effecting, after the testator's death.

See FLORENCE V. DE BEAUMONT (reported herewith) ante, 1565.

In PUFFER V. BADLEY (reported herewith) ante, 1561, a vendor was held not chargeable with knowledge of an offer made for the property by the vendee to a broker, and possessed by the vendee's attorney, who, at the request of the vendor's attorney, who had become ill, passed upon the sufficiency of the title to the property.

29 Trentor v. Pothen (1891) 46 Minn. 298, 24 Am. St. Rep. 228, 49 N. W. 129. The attorney was attorney for the defendant—that is, the vendor of the person to whom notice was sought to be imputed—in the action which was pending at the time of the examination of title.

This seems to have been the theory on which knowledge of attorneys of the insolvency of a grantor was held


court argues: “The rule which im- make inquiry of people generally for putes to the principal the knowledge information as to facts that might af. possessed by the agent applies only to fect the title.' If a party who employs cases where the knowledge is pos- an attorney for the special purpose of sessed by an agent within the scope examining an abstract and passing upof whose authority the subject-matter on the record title is to be charged lies; in other words, the knowledge or with notice of all knowledge which notice must come to an agent who has the attorney may have previously acauthority to deal in reference to those quired from other transactions for matters which the knowledge or notice other parties, it would be very danaffects. . . . Hence, in order to de- gerous to employ an attorney at all termine whether the knowledge of the for any such purpose, and the one agent should be imputed to the prin- whom it would be most dangerous to cipal, it becomes of primary impor- employ would be the attorney having tance to ascertain the exact scope and the most experience and the most exextent of the agency. In this case it tensive practice. We are of opinion nppears from the evidence that the that in view of the special and limited agency was special, and limited to ex- purpose for which the intervener emamining an abstract of title, and, from ployed this attorney, his knowledge that, giving the intervener an opinion of the pendency of this action cannot as to the sufficiency of defendant's be imputed to his principal." title. In other words, it was the or- In a number of cases, one who emdinary case of the employment of an ployed an attorney to pass upon title attorney to examine the record title to property has been held not chargeand give an opinion whether or not it able with all knowledge possessed by is good. We do not suppose it was the attorney in regard thereto. In ever understood that it was within the some such cases, however, the decision scope of the agency of an attorney, is based upon the fact that the knowlunder such circumstances, to go be- edge was not acquired in the course yond the record evidences of title and of the attorney's employment. 32 It has not imputable to a vendee in Weil v. 137, 142 Pac. 490, holding a purchaser Reiss (1901) 167 Mo. 125, 66 S. W. of personal property not chargeable 946, where the attorneys were em- with knowledge of the price paid for ployed by the vendee merely to ex- such property by his vendor, possessed amine the abstract of title, report by an attorney whom the purchaser upon the title shown by it, and draw employed to see that he got title to the the deed.

property. 80 Trentor v. Pothen (Minn.) supra. Lowther v. Carlton (1741) 2 Atk. 31 Mauley v. Zeigler (1859) 23 Tex. 242, 26 Eng. Reprint, 549, Cas. t. Talb. 88, holding one who consults an at- 187, 25 Eng. Reprint, 730. torney about the title to land, not 32 A purchaser of land who has emchargeable with the knowledge of the ployed an attorney merely to pass on attorney of an attachment which had the record title, and draw the necespreviously been levied upon the land. sary papers after he has made his It is stated by the court that “the prin- purchase, is not chargeable with ciple is undoubtedly a sound one that knowledge of a fraudulent intent on a principal is generally chargeable the part of the grantor, possessed by with notice to his agents. But this the attorney, and acquired prior to and principle cannot be stretched so far independently of the employment. as to charge every man who consults Rogers v. Driscoll (1910) 59 Tex. Civ. an attorney about the title to land, App. 415, 125 S. W. 599. with all the knowledge which the at- It is stated obiter in Lowther v. torney may possess about the matter Carlton (Eng.) supra, that "if a counconcerning which he is consulted." sel or attorney is employed to look

Arrington v. Arrington (1894) 114 over a title, and by some other transN. C. 151, 19 S. E. 351. See supra, action, foreign to the business in hand, note 3.

has notice, this shall not affect the Rogers v. Driscoll (1910) 59 Tex. purchaser; for, if this was not the rule Civ. App. 419, 125 S. W. 599.

of the court, it would be of dangerous Forsyth v. Dow (1914) 81 Wash.

consequence, as it would be an objec

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