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VOLUNTARY DONATION OF OWNER.

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For public squares. Trustees of Watertown v. Cowen, 4 Paige (N. Y.), 510; Stuyvesant v. Mayor, 11 Paige (N. Y.), 414.

For streets. Denning v. Roome, 6 Wend. (N. Y.) 651; Wayman v. Mayor of New York, 11 Wend. (N. Y.) 466; Willoughby v. Jenks, 20 Wend. (N. Y.) 96.

Distinction between dedication, as applied to the conveyance of city lots and county lots. Badeau v. Mead, 14 Barb. (N. Y.) 328; but see Hammond v. McLachlan, 1 Sandf. (N. Y.) 323.

Dedication may be made by a State, by laying its lands out into streets and lots, and selling the lots to individuals, in pursuance of a statute. City of Oswego v. Oswego Canal Co., 2 Seld. (6 N. Y.) 257.

The act of several proprietors in laying out a basin connected with a canal and wharf, for the common use of themselves and purchasers of lots, is, as to the purchasers and the land purchased, a dedication of the wharf, etc., to that use; and to establish such dedication it is not necessary that there should be any length of use. It operates as an estoppel. Child v. Chappell, 5 Seld. (9 N. Y.) 246; 6 Hill (. Y.), 413.

If in a town plat, one block appears unsubdivided and without number or mark, a statement by the owner, at the time, that it was intended to be a public square, is a dedication for that purpose. Ruch v. City of Rock Island, 5 Biss. 95. But it is otherwise where nothing was said. Princeville v. Austin, 77 Ill. 325.

The theory of dedication discussed. Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.), 407; Pearsall v. Post, 20 Wend. (N. Y.) 111; affirmed, 22 Wend. (N. Y.) 425; Curtis v. Keesler, 14 Barb. (N. Y.) 511.

Distinction between dedication as in favor of the public and as between owners and purchasers. Child v. Chappell, 5 Seld. (9 N. Y.) 246.

The public right does not depend upon a possession of twenty years. The use, however, ought to be for such a length of time that the public accommodation and private rights would be materially affected by an interruption of the enjoyment. City of Cincinnati v. Lessee of White, 6 Pet. (U. S.) 430 (1832).

Instances of dedication to public use: McConnell v. Town of Lexington, 12 Wheat. (U. S.)582; Van Ness v. Mayor of Washington, 4 Pet. (U. S.) 232; Barclay v. Howell, 6 Pet. (U. S.)498: New Orleans v. United States, 10 Pet. (U. S.) 662; Richardson v. City of Boston, 24 How. (U. S.) 188; Sargeant v. State Bank of Indiana, 4 McLean (U. S.), 339.

Where owner of land exhibits a map of it in which a street is defined, though not yet opened, and sells building lots with front or rear on the street, and makes no express reservation, he dedicates the street to public use. Barney v. Mayor and City of Baltimore, 1 Hugh. (Md.) 113.

§ 66. Must Be the Voluntary Donation of the Owner.Dedication must originate in the voluntary donation of the owner of the land and be completed by the acceptance of the public. And to support a dedication there must be such a user and so accompanied by corroborating circumstances as clearly to demonstrate both.'

'Morton, J., in Green v. Chelsea, 41 Mass. 80 (1836).

67. Form of the Dedication.-No particular form of words or ceremony is necessary or required to the validity of a dedication of lands to public use. The assent of the owner and the use of the lands for the purpose intended by the appropriation are sufficient and estop the person making the dedication from revoking it.'

$68. A Grantee Competent to Take the Title.-Dedication of lands for public purposes have frequently come under the consideration of the courts, and the objections which have been raised against their validity have been the want of a grantee competent to take the title, applying to them the same rule which prevails in private grants, that there must be a grantee as well as a grantor. But it is not the light in which the courts have considered such dedication for public use. The law applies to them rules adapted to the nature and circumstances of the case, and to carry into execution the intention and object of the grantor and to secure to the public the benefit held out and expected to be derived from and enjoyed by the dedication. The objection that there is no grantee to take the title does not prevent a valid dedication."

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69. By Whom Made.-An absolute and final dedication of lands to a public use can only be made by the owner of an absolute fee.'

$70. A Valid Dedication is Irrevocable.-A dedication once made can not be recalled. The intention of the owner, at the time it was made, is alone to be considered, and not his intention at any subsequent time.”

'Cincinnati v. White, 6 Pet. (U. 12 Wheat. (U. S.), 582; Mayor, etc., S.) 430 (1832); Morgan v. Railroad Co., v. United States, 10 Pet. (U. S.) 662. 6 Otto (U. S.), 716; Banks v. Ogden, 4 Ward v. Davis, 3 Sandf. (N. Y.) 2 Wall. (U. S.) 57; Sargeant v. State 502; Bangan v. Mann, 59 III. 492. Bank, etc., 4 McLean, 339. Rush v. City of Rock Island, 5

2 Cincinnati v. White, 6 Pet. (U.S.) Biss. (U. S.) 95; Adams v. Saratoga 430 (1832).

3 McConnell v. Town of Lexington,

R. R. Co., 11 Barb. (N. Y.) 414.

CHAPTER XXI.

THE RIGHT TO REQUIRE THE PLAINTIFF'S ATTORNEY TO PRODUCE HIS AUTHORITY.

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7.

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Precedents.

When the Application Should Be Made.
A Detainer is Sufficient.

What Is a Sufficient Authority.

10. Authority May Be Implied.

11. Confidential Communications Not To Be Divulged.

§ 1. Origin of the Law. The law requiring an attorney to produce his authority to prosecute an action of ejectment, seems to have had its origin in the ancient doctrine of maintenance. The old way of proceeding in ejectment as we have seen, was by sealing a lease on the premises by the party in interest who was to try the title; which indicated the necessity of possession as well as the right of entry. This mode of pro ceeding, at first, was held not to be maintenance, nor within the statute against buying titles, if the lease was made to servants or friends, who could not be presumed either to maintain or countenance the action; but if made to one of ability to maintain the suit it was otherwise. Attorneys were prohibited at an early date in England from taking a lease of the premises for the purpose of bringing the action, for in 1654, it appears to have been ordered by the Court of King's Bench that, "for the prevention of maintenance and brocage, no attorney could be lessee in an ejectment."1

§ 2. Maintenance Defined.-Maintenance is the malicious, or, at least, the officious interference by a person in a suit in which he has no interest, to assist one of the parties to it against the

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other, with money or advice to prosecute or defend the action, without any authority of law.'

It is curious to see how this doctrine of maintenance has, at different periods, been treated in the courts of English speaking people. At one time, not only he who laid out money to assist another in his cause, but he who, either by friendship or interest, saved him an expense which he otherwise would have incurred, was held guilty of maintenance. If he officiously gave evidence it was maintenance; so that he must have had a subpoena or suppress the truth. A doctrine so repugnant to good sense and justice could not long exist."

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3. The Modern Rule.-In modern times it is a rule of practice of almost universal application in the administration of justice that where an attorney of the court appears for a party to an action, he may be recognized by the adverse party with safety and treated as such. The presumption that the attorney has ample authority to act will, in the absence of circumstances indicating fraud, be indulged. Courts, however, possess ample power to compel attorneys to produce their authority," but they will not usually exercise it, especially where the attorney is reputable and responsible."

§ 4. A Stricter Rule in Actions of Ejectment.--In actions for the recovery of the possession of real property or where the title or right of possession of land is in controversy for the purpose of protecting the rights of the person in the actual possession, a stricter rule has been applied by the courts, and when it appears that the action is brought without authority the court will either stay the proceedings or dismiss the suit and compel the attorney to pay the costs.'

§ 5. Statutory Enactments.--As the fictions of the common law action of ejectment fell into desuetude and were succeeded

11 Russell on Crimes, 176; 2 Bouvier's Law Dic., Tit. Maintenance.

2 Runnington on Ejectment (N. Y. Ed. 1806.), 145.

3 Hamilton v. Wright, 37 N. Y. 402; Hallett v. Hastie, 35 Ala. 164.

4 Rogers v. Park, 4 Humph. (Tenn.) 480; Estey v. People, 23 Kan. 510. 5 Allen v. Green, 1 Bai. (S. C.) L. 448; Ninety-nine plaintiffs v. Vanderbuilt, 4 Duer (N. Y.), 632; 1 Abb. Pr. (N. Y.) 193.

6 Hamilton v. Wright, 37 N. Y. 502; American Ins. Co. v. Oakley, 9 Paige Ch. (N. Y.) 496; Jackson v. Stewart, 6 Johns. (N. Y.) 34; Anon.. 1Salk. 86; Anon., 6 Mod. 16; Cartwell v. Menifee, 2 Ark. 356; Republic, etc., v. Arrangois, 1 Abb. Pr. (N. Y.) 437; 5 Duer (N. Y.), 643; Denton v. Noyes, 6 Johns. (N. Y.) 296.

"Weeks on Attorneys, § 78.

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by the modern forms of procedure, a substitute for this rule prohibiting attorneys from becoming the lessee in actions of ejectment seems to have been found in statutory enactments of many States, requiring the attorney bringing the suit to produce his authority upon the application of the defendant. As an illustration we quote the statute of Illinois. Under these statutes the courts have no discretion. Upon application properly made the order will be granted with a stay of proceedings until the authority is produced.'

Authority of plaintiff's attorney.

A defendant in ejectment may, at any time before pleading, apply to the court, or to any judge thereof in vacation, to compel the attorney for the plaintiff to produce to such court or judge his authority for commencing the action in the name of any plaintiff therein. Such application shall be accompanied by an affidavit of the defendant, that he has not been served with proof, in any way, of the authority of the attorney to use the name of the plaintiff stated in the declaration. 1 Starr & Cur. Statutes Ill. 983, 16; R. S. 1845, 206.

$6. Precedents.

(1) Affidavit of defendant to support application for order that plaintiff's attorney produce his authority for commencing action.

County of- -, to wit: C. D., the defendant in this suit, being duly sworn deposes and says, that he has not been served with proof in any way, of the authority of E. F., whose name appears on the declaration in this suit as the attorney for the plaintiff, [or, "plaintiffs,"] therein, to use the name, [or, "names,"] of the plaintiff, [or, "plaintiffs,"] named in the said declaration; and further this deponent says not.

Subscribed and sworn, &c.'

C. D.

(2) Order requiring attorney to produce his authority. Title, etc.:

Ordered, That A. B., Esq., acting as attorney for the plaintiff in this cause, do forthwith produce to me his authority for commencing this action in the name of the plaintiff therein, and all proceedings on the part or in the name of the plaintiff therein, are hereby stayed, till such authority be produced. Dated, &c. S. CHEEVER, Judge.

1 Carpenter v. Allen, 13 Jones & G. (N. Y.) 322; McDermott v. Davison, 1 How. Pr. (N. Y.) 194; Howard v. Howard, 11 How. Pr. (N. Y.) 80.

Adams on Ejectment, 487.

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