PART I.

CH. II. 8. 2.

Assignee of debt.

What a sufficient authority.

Extent of authority of agent.

he might think proper, has authority not only to bring an action in the name of the assignors on the contract and to refer it, but also to consent to a reference of a cross action by the defendant, the other contracting party, against the assignors for wires spoiled in the process of covering (o).

A party to whom debts had been equitably assigned, and who was authorised under a power of attorney to receive and compound for the same, having submitted to arbitration the matters in difference between his principals and one of their debtors, was held entitled to maintain an action in his own name for the sum awarded in his favour (p).

It often becomes a question whether a person who is agent for some purposes is so for the purpose of binding his principal by a reference. A person who underwrites, and settles. losses for another, has an implied authority from him to refer to arbitration a dispute about a loss (q).

When a member of a partnership firm gave his son a power of attorney to act upon his behalf in dissolving the partnership, with authority to appoint any other person as he might see fit, it was held that this gave the son power to submit the accounts to arbitration (r).

Consignees of goods were by agreement, after deducting their advances, charges, and commissions, to pay over the balance. When the goods arrived, the captain of the ship, the agent of the party entitled to the balance, who was then a bankrupt, wrongfully refused to deliver them. No assignees had been appointed. The consignees were held authorised to sue the captain and also to submit the action to arbitration, and to deduct the costs of both action and reference from the balance to be paid over (s).

An agent authorised to conduct the reference for a party has power to consent that the opponent may produce his books before the arbitrator alone at a subsequent day (t). He may also bind his principal by waiving an objection to an improper appointment of an umpire by lot (u).

II. Attorneys and solicitors.]-Attorneys and solicitors are agents who are clothed with peculiar powers of effecting their client's interests.

When a person has given an attorney any general authority to act for him in legal proceedings, the courts have always been inclined to hold him bound by his attorney's acts, and yield with reluctance to any complaint that the attorney has acted beyond or contrary to the authority given him in consenting to a reference (x). On one occasion, Best, C.J., seems to have assumed as clear, that an attorney in a cause has power to refer the cause, whatever be his authority as to matters out of it, and that attorneys for the parties generally have power to refer all matters in difference (y). In another instance, where it was necessary to prove at Nisi Prius that all the members of a firm had assented to a parol submission, the arbitrator stated in the witness-box that he had been requested by one partner only to undertake the arbitration, that the defendants had never personally attended, but were represented at the reference by their attorney, A. B. Taunton, J., in summing up to the jury, said that A. B., having acted as attorney for the defendants, they must be taken to be bound by his acts (z). Even where a defendant swore that she had expressly desired her attorney not to consent to a reference, and that no step had been taken in it except the appointment of a meeting, the court refused the application to set aside the Nisi Prius order of reference, and Mansfield, C.J., said, "Here is an express agreement to refer, properly entered into by counsel and attorney; it is now said they had no authority to enter into that agreement; if so, the defendant's remedy is by action against her attorney” (a). So where a cause was referred by judge's order by consent of the attorneys, the court enforced the award summarily, though the defendant swore that he had never authorised the reference, and previous to the award being made had sent a protest to the plaintiffs and the arbitrator against their proceedings (b).

(z) Latuche v. Pasherante, 1 Salk. 86; Buckle v. Roach, 1 Chitt. 193; Bodington v. Harris, 1 Bing. 187; Jamieson v. Binns, In re, 4 A. & E. 945; Paull v. Paull, 2 C. & M. 235.

(y) Dowse v. Coxe, 3 Bing. 20. (z) Adams v. Bankart, 1 C. M. & R. 681.

(a) Filmer v. Delber, 3 Taunt. 486.

(b) Smith v. Troup, 7 C. B. 757.

PART I.

CH. II. 8. 2.

Power of an attorney to

bind his client ference.

by a re

PART I. CH. II. S. 2.

Attorney to a corporation, authority under seal.

Town agent of attorney.

Confidential clerk.

Solicitor.

In a case against a land steward defended by the landlord, the attorney had agreed to an order of Nisi Prius compromising that action, and also other actions between the plaintiff and the landlord; a motion was made to set aside the order, on the ground that the attorney had no authority to bind the landlord by such an arrangement, and it was argued that employing an attorney in a cause gives him no authority to refer all matters in dispute between the parties; but the court said it was constantly done, and refused to interfere in a summary way (c).

On one occasion, where the question was raised but not determined, whether a retainer under seal was necessary to warrant the attorney of a corporation in conducting or referring an action, Pollock, C.B., distinguished the case of Arnold v. Mayor of Poole (d), saying that that case did not decide that the corporation might not be bound, but only that the attorney could not recover, without such a retainer (e).

More recently, however, where an incorporated railway company had been served with a writ, and their attorney had entered an appearance, and ultimately referred the action, the court enforced the award against the company, although they objected that the attorney not being appointed under seal had no authority to proceed in the action, or to refer it (f).

The attorney's consent to an enlargement of time binds the client (g).

A judge's order referring a cause might be made a rule of court without any consent on the part of the client. If the attorney consented for him it was enough ().

The acts of the attorney's town agent are as binding on the client as the acts of the attorney himself (¿).

But a confidential clerk of an attorney is not competent to bind his principal or the client by consenting to the appointment of an umpire by lot ().

A distinction was formerly taken, which, however, may

well be doubted now, between the authority of a solicitor and attorney. It was said that the assent of a solicitor to a reference by an order of a court of equity was not obligatory on the client without his actual concurrence, though in the same case it was admitted that such a reference by rule of Nisi Prius would bind him (7).

PART I.

CH. II. S. 2.

Like other agents, attorneys bind themselves by a submis- Attorney personally sion if they expressly contract to be bound (m), and when bound. they submit without authority they alone are bound (n).

Quarter

The attorneys of the parties to an appeal against a poor- Appeal at rate at the Quarter Sessions have sufficient authority to refer Sessions. the question to arbitration (o).

When infants sued by their next friends in Chancery, the Suit in attorneys in the suit had no authority to bind the infants by equity: infant plaintiffs. a reference, or the next friends of the infants, for the due performance of the award by the infants (p).

III. Counsel.]-A reference by the consent of a counsel in Power of a cause will, it is apprehended, in general be binding on the counsel to party he represents.

A counsel appeared to consent to a compromise of a suit on behalf of one of the parties. Some doubt being suggested whether the counsel was authorised by the party to the suit, the instructions not being given by the solicitor she had formerly employed, Lord Chancellor Eldon said, "It is for the counsel to consider whether he is authorised to give his consent for the widow. If he does, I must act upon it, and she will be bound by it" (2).

That decision of Lord Eldon's was relied upon in the following case :-A counsel in a suit in equity, in the absence

(1) Bac. Ab. Arb. C.; Colwel v. Child, Cas. in Ch. 86; 1 Ch. Rep. 104. See Furnival v. Bogle, 4 Russ. 142.

(m) Com. Dig. Arb. D. 2; Cayhill v. Fitzgerald, 1 Wils. 28, 58; Iveson v. Conington, 1 B. & C. 160.

(n) Bac. Ab. Arb. C.; Bacon v. Dubarry, 1 Salk. 70, S. C. 1 Lord Raym. 246; Comb. 139; Carth. 412; but see Anon. 6 Mod. 16; and Wade v. Stanley, 1 Jac. & W.

refer to arbitration.

Counsel with full informa

tion of the facts.

PART I.

CH. II. S. 2.

of his solicitor and of the client from the court, consented to an order being drawn up on certain terms proposed by the other side. When the client was informed of it he strongly objected to the terms, and moved to have the order rescinded. The case was several times brought before Lord Lyndhurst, C., who stated his opinion, that a party was bound by the consent of his counsel given in court, though they had no instructions to consent, if they were at the time apprised of all those facts of which the knowledge was essential to the proper exercise of their discretion, but that he would be relieved from an order made by such consent if they gave that consent in ignorance of material circumstances. He also intimated, that if the solicitor had been in court, and with a full knowledge of all the facts of the case had assented to the arrangement, it would have bound his client; and that if the solicitor, when he heard of the order, had dissented from it, it was his duty to have given immediate notice of his objection; that by not doing so he would be taken to have adopted it, and his client would be bound. Affidavits, however, were admitted to show that the counsel had not all the proper facts before them, and that there had been no laches in objecting on the part of the solicitor, and consequently the order was rescinded ().

The principle that parties are bound by the consent of their counsel has been recognised in a later case, where a petition to restore a petition dismissed by consent upon the ground that no authority had been given to counsel to consent, was dismissed with costs (s).

More recently the power of counsel to bind their clients by agreeing to a compromise has been upheld, notwithstanding certain contradictory opinions expressed by members of the Courts of Chancery and of the Common Pleas (t).

If a party is present in court and hears his counsel state in court that the case is referred, he will be bound by the act of his counsel unless he protests openly (u).

(r) Furnival v. Bogle, 4 Russ.

142.

8

Hobler, In re, 8 Beav. 101. Strauss v. Francis, 1 L. R. Q. B. 379; Mathews v. Munster, 20 Q. B. D. 141, S. C. 51 J. P. 615; Swinfen v. Swinfen, 18 C. B.

485, S. C. 25 L. J. C. P. 303; S. C. 26 L. J. C. P. 97; in Equity, 27 L. J. Ch. 35; on appeal, 27 L. J. Ch. 491; Swinfen v. Ld. Chelmsford, 5 H. & N. 890.

(u) Rumsey v. King, 33 L. T. Q. B. D. 728.