
    JOHN W. REDFIELD v. THE UNITED STATES.
    [Indian Depredations,
    284, 5787.
    Decided June 27, 1892.]
    
      On the defendants’ Motions.
    
    A suit is brought by one attorney, and subsequently another by another attorney, for the same claimant and for the same cause of action. The defendants’ move to dismiss the first, and produce an affidavit of the claimant, in which he says he authorized the bringing of the first suit, but desires that his case shall be prosecuted by means of the second.
    L When a party employs an attorney, who institutes a suit for him, the court acquires jurisdiction and the attorney a right to compensation. A client may then revoke the power and discharge the attorney, but only with permission of the court and on such terms as are prescribed.
    II. After bringing one suit a party can not institute another until the first is disposed of. It is in the first suit that the issue between the parties must be tried.
    IH. A suit brought without authority may be dismissed on the motion of the plaintiff in person or on the motion of the defendants; but a suit brought with authority must stand until trial or until dismissed in ajegal manner.
    IV. The claimant himself can not dismiss his own suit until he has dis- ' charged his attorney with permission of the court; and when he has wrongfully brought several actions for the same cause, he can not elect which one he will prosecute.
    V. Where two attorneys have been duly authorized to bring suit upon the same cause of action in an Indian depredation case, the court will apportion the statutory costs upon the entry of judgment according to the actual services performed and their value to the claimant, without reference to any contract.
    VI. The provision relating to costs in the Indian Depredation Act 1891 (26 Stat. L., p. 851, § 9) is like the taxable costs in actions at common law, which the parties cannot regulate by contract.
    
      The Reporters' statement of tbe case:
    The motions of the defendants are set forth in the opinion of the court.
    
      Mr. Assistant Attorney-General Colby for the motion.
    
      Messrs. Charles and William B. King opposed filed the following written argument:
    (1) Many claimants, notwithstanding diligent attention on the part of their attorneys, upon the passage of the act of March 3,1891, revoked existing authority without due cause and appointed new attorneys.
    (2) In numerous cases in which little or no action had been taken by attorneys the claimants employed others to prosecute their claims; but the former attorneys asserted their rights under their old authority and presented petitions in the name of the claimant.
    (3.) A few attorneys or other persons, desiring to represent claimants before the Court of Claims, offered inducements to claimants to discharge the former attorneys and to employ them, without regard to the contract relations between the claimants and their former attorneys or the difficulties and responsibilities in which the claimant might become involved ky a double attorneyship. In many cases these inducements succeeded.
    It is believed that the general rules of law as administered in courts and the authority granted by the statute will enable these controversies to be settled without serious injustice. Attorneys who have neglected the interests of their clients ought not to receive consideration, but attorneys who have attended to their clients’ interests ought not to be displaced without proper regard of their services.
    No case is before the court for adjudication in which the authors of this paper are interested; but in accordance with the permission of the' court they submit the following statement of established rules of law, with authorities, in the hope that it may be of assistance to the court. All authorities cited have been personally examined.
    (1) Contracts for contingent fees in Government claims are lawful. This principle is decided in the following cases by the Supreme Court: Wylie v. Goxe (15 How., 416); Wright v. Teh-hitts (91 U. S. B., 252); Stanton v. Fmbrey (93 U. S. B., 548); Taylor v. Bemiss (110 U. S. B., 42).
    In tbe last case tbe court not only bold tbat sucb a contract, altliougb for 50 per cent, was lawful, but go out of tbeir way to justify and approve tbe system of contingent fees in Government claims. Tbey say (p. 45):
    “ It was decided in tbe case Stantony. Fmbrey (93 U. S. B., 548) tbat contracts by attorneys for compensation in prosecuting claims against tbe United States were not void because the amount of it was made contingent upon success or upon tbe sum recovered. And tbe well-known difficulties and delays in obtaining payment of just claims wbicb are not within tbe ordinary course of procedure of tbe auditing officers of tbe Government justifies a liberal compensation in successful cases, where none is to be received in case of failure.
    “Any other rule would work sucb hardship in cases of creditors of small means, residing far from tbe seat of government, who can give neither money nor personal attention to securing tbeir rights.”
    Tbe legislation of Congress has also proceeded upon this theory. Wherever tbe subject of fees of attorneys in Government claims has been tbe subject of legislation, contingent fees have been provided for and recognized.
    Fees in claims prosecuted before tbe Court of Commissioners of Alabama Claims. (Act June 23, 1874, 18 Stat. L., 249, sec. 18;)
    Fees in bounty claims of colored soldiers. (Act March 3, 1879, sec. 2; 1 Supp. Bev. Stat., 2d ed., 252;)
    Fees in claims for pension. (Acts July 4,1884, secs. 2-6; 1 • Supp. Bev. Stat., 2d ed., 451-453; June 27, 1890, sec. 4; 1 Supp. Bev. Stat., 761;)
    Fees in Indian depredation claims. (Act of March 3, 1891, sec. 11 ;1 Supp. Bev. Stat., p. 916.)
    (2) No plaintiff has a right to enter a second suit upon the same cause of actiou upon wbicb a prior suit is pending. Tbe pendency of tbe prior suit is cause for abatement of tbe second suit upon tbe defendant’s motion. Tbe doctrine here stated is elemental. It appears in tbe text-books. (2 Parsons on Contracts, 5th ed., 725; 6 Wait’s Actions and Defenses, 496.)
    It is so well conceded, tbat decided cases are nearly all upon tbe limitation and application of tbe doctrine. Tbe following are directly in point: MoKinsey v. Anderson (4 Dana, 62); Fish 
      v. Atlcinson (10 Pac. Bep., 374; 71 Cal. 452); Beyersdorfv. Sump (41 Northwestern Bep., 101; 39 Minn., 495).
    In Benner v. Bussard (1 Wheaton, 215), the question was whether a second suit could be pleaded in abatement of a prior suit. Mr. Justice Story says (p. 217):
    “ It is very clear that it can not. A subsequent suit may be abated by an allegation of the pendency of a prior suit; but the converse of the proposition is, in personal actions, never true,”
    See also Watson v. Jones. (13 Wall, 679, 715.)
    (3) If an action is brought on behalf of the plaintiff without proper authority, it may be dismissed on motion either of the plaintiff himself or of the opposite party. (Weeks on Attorneys at Law, secs. 193, 214; Mechem on Agency, sec. 810; MeKier-man v. Patrióle, 4 How., Miss., 333; Turner v. Garuthers, 17 Cal., 431; Ciarle v. Willett, 35 Cal., 534, 538; Boo parte Gillespie, 3 Terger, Tenn., 325; M’A lexander v. Wright, 3 Monroe, Ky., 189; King of Spain v. Oliver, 2 Wash. C. C., 429.)
    (4) A revocation of a power of attorney is not valid until notice to the attorney. This is a general principle of the law of agency. (Story on Agency, sec. 470; Mechem on Agency, sec. 226; Weile v. United States, 7 O. Cls. B., 535; Jones v. JEodg-leins, 61 Maine, 483.)
    (5) If a cause has been filed by an attorney under proper authority, the client cannot appear himself in the cause to file motions or take other proceedings. This inhibition extends even to a motion to dismiss. (Weeks on Attorneys at Law, sec. 198, p. 348; sec. 220; Wharton on Agency, sec. 585; Mechem on Agency, sec. 811; Turner v. Caruthers, 17 Cal., 431; Board of Commissioners v. Younger, Cal., 147, 149; Mott v. Foster, 45 Cal., 172; Nightingale v. Oregon Cen. B. B., 2 Sawyer, 340; Fdgarton v. Bracleett, 11 N. H., 218.)
    This doctrine is carried so far that a plaintiff can not discharge a judgment by settlement with defendant in fraud of plaintiff’s attorney. (Swain v. Senate, 5 Bosanquet & Puller, 99; Cole v.Bennet, 6 Price, 15; Taleott v. Bronson, 4 Paige, 501.)
    Proceedings affecting the right of the attorneys to appear are ex necessitate excepted from the above rule, as proceedings denying his original authority and proceedings toward revoking his authority (considered below.)
    
      (6) The attorney of record in a cause can be changed only with the consent of the court, and this will not be granted except upon compensation of the original attorney. (Weeks on Attorneys at Law, secs. 250, 252; Mechem on Agency, sec. 356; Wharton on Agency, secs. 635, 636; Parlcer v. Williams-burg.> 13 How. Pr., 250; Stevenson v. Stevenson, 3 Bdws. Ch., 340.)
    The court will protect the attorney not merely in his taxable costs, but for his fees as counsel. (Supervisors v. Brod-head, 44 How. Pr., 419; Ogden v. Devlin, 93 N. T. Super. Ot., 631; Dodgév. Sehell, 12 Fed. Bep., 515.)
    A lien declared “pro rata upon any moneys on judgement hereafter determined.” (Ronald v. Mutual Reserve Bund Life Association, 30 Fed. Bep., 228.)
    The extent to which a court will protect the attorney beyond his taxable costs is not likely to be material in the Indian depredation cases, as the fees will not generally exceed the taxable costs.
   Richardson, Ch. J.,

delivered the opinion of the court:

Th,e Assistant Attorney-General files a motion to dismiss cause No. 284, accompanied by an affidavit of the claimant, which are as follows:

“And now comes the Assistant Attorney-General, and moves the courtto dismiss the above-entitled cause No. 284, and transfer the papers therein to No. 5787, for the reason that there is another action pending by the same claimant for the same cause of action, Indian Depredation, No. 5787, and the claimant has elected to dismiss this case, No. 284, and to proceed with No. 5787, as will more fully appear by claimant’s affidavit attached hereto in support hereof.
“ L. W. Colby,
“Assistant Attorney-General.
“JOHN W. Bedeield, being first duly sworn, on oath deposes and says:
“ That he is a citizen of the United States, residing in Glendale, county of Douglass and State of Oregon.
“ That he is the lawful owner of a claim for losses by depredation of the Bogue Biver Indians, in 1855; which claim was duly filed with the Commissioner of Indian Affairs February 13, 1884, and was given file number 3196.
“ That he formerly employed B. F. Dowell as his attorney, but on account of dissatisfaction with services rendered revoked the said power of attorney to B. F. Dowell in the month of May, 1891, and at tbe same time executed a new power of attorney to Hughes & Weller as counsel for tbe examiner bureau of claims.
“ That be duly notified tbe said B. F. Dowell of tbe revocation of bis power of attorney, but in spite of said notification tbe said B. F. Dowell still claims to represent this deponent in tbe Court of Claims.
That be has already paid the said B. F. Dowell for any and all services .heretofore rendered.
“That be desires and requests tbe honorable Court of Claims to dismiss case 284, brought in bis name by B. F. Dowell, and consider only case 5787, and recognize only Messrs. Hughes and Weller as bis attorneys of record in the prosecution of bis said claim.
“ In witness whereof I hereunto affix my band and seal this 29th day of February, 1892.
“ [seat.] John W. Redeield.
“ Witnessed by—
“ J. L. Denny,
“ Hardy Elliee.”

This brings directly before tbe court for judicial consideration a reprehensible practice which has arisen under tbe Indian depredation Act (1 Supp. Rev. Stat., 2d ed., p. 913) of claimants’ multiplying cases through different attorneys for tbe same cause of action, and, whether done through their own ignorance or through solicitations of attorneys, is to be discountenanced and condemned. In some instances as many as three or four separate petitions have been filed by several attorneys holding powers of attorney of different dates. The defendants are harassed with a multiplicity of suits to be defended, and the court is trifled with by having its docket encumbered with so many unnecessary petitions, and is subjected to the unpleasant duty of deciding upon unseemly controversies between attorneys.

Members of the bar, belonging to an honorable profession, are bound to conduct themselves towards each ocher with the utmost fairness, openness, and consideration. Their duties to clients, as well as to their professional brethren and to the public at large, require that course of conduct, in order to preserve the high standard of the profession, to give no cause of complaints against them, and to avoid scandals, which injure their own reputation and bring discredit upon the whole body.

When a client employs an attorney who brings snit for him the court acquires jurisdiction of the cause of action, the defendants come in to have their rights settled in that suit, and the plaintiff’s attorney acquires a vested right to compensation for services performed.

The client may revoke his power of attorney upon notice duly given, but the acts of the attorney are binding until notice of revocation is received. He may discharge his attorney of record in a suit with permission of the court on such terms as the court may prescribe, but after bringing one suit he can not institute another until the first is disposed of. It is in the first suit that the issue between the parties must be tried.

A suit brought without authority may be dismissed on motion of the plaintiff in person or on motion of defendants, because a judgment recovered in such suit would not be binding on the parties. But a suit brought with authority of the prain-tiff must stand until tried on the issue raised or until dismissed in legal manner. The plaintiff himself can not dismiss his own suit until he has discharged his attorney with permission of the court, and when he has wrongfully brought several actions for the same cause he cannot elect which one he will prosecute.

Applying'these well-settled principles to the present case, it is clear what the court must do.

It appears that Mr. B. F. Dowell, an attorney of this court, brought an action March 31, 1891 (No. 284) for the claimant by authority of the following power of attorney:

“ICnow all men that I, John W. Bedfield, of the county of Douglas and State of Oregon, by these presents do nominate, constitute, and appoint B. F. Dowell, and his daughter Annie B. Dowell, of Portland, Oregon, my true and lawful attorneys irrevocably, for me, and in my name, place, and stead, to appear before the legislature of Oregon, or in any of the departments of the State of Oregon, and in the Court of Claims, before Congress, and at any of the Deimrtments of the Government of the United States, and to prosecute to recovery, and to ask for and to demand from either said governments all sums due me, or to become due me, for my claim against the United States for the depredations of the Indians, and the receipt for the draft for the same, and particularly for depredation of the Bogue Biver Indians and Crow Creek Indians in Oct., 1855. Interlined with the words “ and his daughter, Anna E. Dowell,” before signed. Commissioners No. 3190 for $3,180. To collect, file all necessary proof at my expense and charge, and in my name to receive and receipt for the same, and generally to do and perform everything necessary to be done, as fnlly and effectually, to all intents and purposes, as I myself could do if personally present, hereby ratifying and confirming allmy said attorney may lawfully do in the premises, with power of substitution, and revoking all other powers of attorney granted by me. Twenty-one words stricken out before signed.
“ Witness my hand and seal this 10th day of December, 1886.
“John W. Redeield.
“Witness present:
“ D. D. Blinn.
“ W. E. Aitch.
“[Duly acknowledged before a notary public.]”

Subsequently the claimant gave another power of attorney to Messrs. Hughes & Weller, also attorneys of this court, and they filed another petition for the same cause of action November 17,1891, No. 6787. Their power of attorney is as follows:

“ Know all men by these presents, that I, John W. Redfield, of Glendale, in the county of Douglas and State of Oregon, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, Hughes and Weller, general counsel for examiner bureau of claims, my true and lawful attorneys, for me and in my name, place, and stead, hereby annulling and revoking all former powers of attorney whatever in the premises, to prosecute before any Department, or any court of record, or any committee of Congress of the United States until final completion, for me, my claim under the act of Congress of March 3,1891, for losses suffered from Indian depredations, committed in the month of October, in the year 1866, and to from time to time furnish any further evidence necessary, or that may be demanded, giving and granting to my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, including verification of petition in U. S. Court of Claims, as fully to all intent and purposes as I might or could do if personally present at the doing thereof, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorneys or their substitute may or shall lawfully do or cause to be. done by Virtue hereof.
“ My post-office address is Glendale, Douglas County, Oregon.
“ In witness whereof I have hereunto set my hand, etc., this 16th day of May, eighteen hundred and ninety-one.
“John W. Redeield.
“[Duly acknowledged, etc., May 16, 1891. Mrs. F. M. Roberts, notary public.”]

It is proper to state that Mr. Dowell denies by affidavit tbe allegations of tbe claimant that be bas been paid bis fees and that be bas done any acts to give cause for dissatisfaction, and. we bave no reason to doubt tbe truth of bis statements. He bas long been a member of tbe bar in tbe State of Oregon, and be appears to have rendered valuable and faithful services for bis client.

Tbe circumstances under which tbe claimant was induced to give a new power of attorney to other attorneys after Mr.-Dowell bad nearly completed bis work by obtaining an award by tbe Secretary of tbe Interior, and bad brought bis action thereon, are not now for tbe court to consider, as we hold tbe second power, however obtained, to be inoperative to discharge tbe first suit.

Tbe motion of the defendants to dismiss cause No. 284 is denied. Tbe subsequent suit, No. 5787, will be disposed of when tbe subject is properly presented.

As to attorney’s fees, we may say that upon entry of judgment an allowance to attorneys will be made in proportion to tbe actual services performed and their value to claimants, without reference to any previous contracts between tbe parties.

Tbe statute provided that “ tbe allowances to tbe claimant’s attorneys shall be regulated and fixed by tbe court at tbe time of rendering judgment in each case and entered of record as part of tbe findings thereof: but in no case shall tbe allowance exceed 15 per cent of tbe judgment recovered, except in case of claims of less amount than $500, or where unusual services bave been rendered qr expenses incurred by tbe claimant’s attorney, in which case not to exceed 20 per cent of such judgment shall be allowed by tbe court (1 Supp. Rev. Stat., 2d ed., p. 916.) This we regard as like tbe taxable costs in actions at common law, which tbe parties themselves can not fix by contract. (Rev. Stat., §§ 823, 824.)  