has become extinct in the present reign. It would be using a very extravagant phraseology to describe, as the disappearance of an old diligence, the abolition of the special adjudication. It would be equally hyperbolical to characterise in that way the change of the previous forms of crown process into the ordinary forms that prevail between subjects. The alteration in form is no doubt very marked in the latter case; but still it is the form which is really modified, and not the substance. The nature of the executions, the periods from which the attachments are effected, and the extent to which they operate, remain very much as they were before. It would be equally impossible to say with propriety, that any new diligence has arisen. No doubt there are some very striking modifications of old processes, which at first look very like processes altogether new. The collection of railway tolls by parties appointed at the instance of the mortgagees, and the distribution, in certain circumstances, of company effects by official liquidators, are in many respects considerably different from the previously existing modes of execution. Still they are rather to be regarded as modifications of old forms; and, indeed, even as regards form, we will not find, in the period to which these notes refer, any transformation so decided as the change from the distress of moveables by the sheriff, to the poinding by the officer; or from the appraisement of heritage by the messenger, to the adjudication by the supreme court.

It must not, however, be supposed that the alterations that have taken place are of small extent or importance. They are so merely in comparison with the gigantic transformations of previous ages. In themselves they are both great and instructive, and have originated out of alterations equally great in the political and social life of the nation. The cause most widely operative, has been the rapid rise of the commercial and manufacturing classes, both in political influence and social importance. It was natural-indeed, it was inevitable-that this new and growing power in the state should instinctively direct its efforts to the whetting and pointing of those processes of execution on which its own healthy and vigorous existence so much depends. There was certainly ample occasion for its endeavours; for diligence had come down from a time when little more was required of it than to enforce the relative obligations of superior and vassal, landlord and tenant, and it was but an inefficient and awkward instrument for the necessities of modern commercial enterprises. Hence the very earliest legal efforts of Parliament, during the reign of her Majesty, were directed to give the ordinary forms of execution for debt a speed, a directness, and a simplicity that they had never before been possessed of in this country. This was one great cause of the changes introduced into diligence. These improvements reacted on the classes from which they originated, and produced, with other important influences which it would be out of place to notice here, an immense development of commercial enterprise, which gave birth to numerous and

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gigantic companies and associations. These again demanded for their own peculiar necessities new modifications of diligence to improve the methods of recourse possessed by third parties against them, by them against their shareholders, and by their shareholders. against them and against each other. Here was a second source of development in diligence.

At the same time, the enormously increased circulation of capital perpetually tended to suck land into its vortex, and found itself perpetually baffled by that ancient system which tied up estates in particular families. A combination of circumstances at length sapped what had long resisted assault, and great alterations in the law of entail drew after them other modifications in the diligences connected with it. Lastly, the extension of general intelligence threw a light upon many social influences but obscurely understood before, and originated a social legislation which has already produced striking effects. Parliament penetrated into every corner of the nation's life, and attempted to subject its habits and manners to central control and systematic regulation, while at the same time encouraging and aiding it to control itself and minister to its own necessities. It was impossible to use, for purposes so searching, even the improved ordinary processes of execution; and hence the introduction into our law under numerous statutes and for the purposes of diligence, of proceedings so rapid and direct, as almost to resolve into the taking of the law into one's own hand. Such, generally, were the influences that operated to modify diligence for debt during the Victorian era. In our next we shall examine more specifically, but still for the purposes of a general abstract, what was the precise nature of the several modifications. (To be continued.)

THE RIGHT OF COUNSEL TO EFFECT A COMPROMISE.

THIS important question has been lately fully discussed in the English case of Swinfen v. Swinfen, a note of which will be found in our Digest. An action was brought to try the validity of a will, under which the plaintiff claimed an estate worth L.60,000 from the heir-at-law. In the course of the trial, which took place at Stafford, in March last, it was suggested to the plaintiff, by her counsel, Sir F. Thesiger, that she should compromise her claims for an annuity of L.1000. This was on a Saturday. She took time to consider the proposal, and, by electric telegraph, on Sunday distinctly rejected it; but on her arrival in Court on Monday, she found that her case had been concluded, by the withdrawal of a juror, the leading counsel having come to an arrangement, on terms similar to those originally suggested. Mrs Swinfen having repudiated the

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whole transaction, the question lately before the Court of Exchequer was, whether counsel had power to compromise a case without special authority from his client? An elaborate judgment was pronounced by Crowder, J., who was of opinion that, in the case under consideration, there was no evidence of any special authority to make the compromise, and, also, that the relation of counsel and agent implied no general authority for such a purpose. No doubt, he said, in conducting a cause, a counsel acts entirely on his own uncontrolled judgment and discretion; and, with respect to all acts and admissions necessary to the determination of the suit, he is treated as invested with full authority, otherwise business could not proceed. But where a settlement is proposed, and the case is to be taken out of Court, the arrangement ought not to be concluded without special instructions from the client; because a client might think an excellent advocate but an indifferent negotiator, and if it was his wish that he should be employed in both capacities, it was an easy matter to say so. He therefore even went the length of holding that counsel could not refer a case, without special instructions, far less against his consent. This opinion was not shared in by the other two members of the Court, Creswell and Williams, J. J., but whether on the ground of a special authority appearing, or the general authority existing, is not said. However, they all concurred in thinking that, under the circumstances, the compromise should not be enforced. The point, therefore, cannot be said to be yet distinctly determined.

The Scotch Courts have always taken a much larger view of the powers of counsel. A person may either conduct his own case or submit it to the discretion of another; but, if he adopts the latter alternative, the mandate must be absolute and the discretion uncontrolled. In any other view, the conduct of public business would become impossible. No party can be said to be at liberty to accept or reject at pleasure the acts and admissions of his counsel. If he is to be bound by them at all, he must be bound absolutely. The principle, therefore, can only be, that the agency extends to the uncontrolled direction of the whole interests of his client in the case. The counsel is not engaged merely to conduct the matter at issue to a determination, he is retained to secure that result which will be most advantageous to the party, whether it be by a verdict, a judgment, a compromise, a reference, or even a total abandonment of the case, for it may be that the case is such that the party would be involved in a deeper disgrace by a decision than if the matter was not pressed that length. Accordingly, in a case in 1831 (Bellanden v. Chrystal, 10 S., 168), we find the question very broadly stated, though it does not appear to have been decided. A minute was given in (signed by counsel) consenting to decree in a case for a certain sum, and proposing to make a judicial reference of the other claims in dispute. A minute was lodged in answer by the other party, consenting to the reference, and signed by counsel.

Decree was pronounced by the Lord Ordinary accordingly; but the defender having reclaimed, pleaded that the agent required a special mandate to refer, and none being given, the signature of counsel could not give efficacy to a consent, which the agent had no power to instruct him to sign. The case appears to have gone off on another point. But, in 1833, the question again occurred, and the principles above stated were very broadly affirmed.-In Gilfillan v. Monkhouse, etc. (11 S., 548), an agreement had been signed by counsel on both sides at a jury trial, that neither party should insist for a verdict, and the question of expenses was referred. The jury were then discharged; and the defender having subsequently given notice for a new trial, the pursuers moved to discharge the notice in respect of the agreement, maintaining that, after a jury is sworn, the interests of the client are, so far as relates to the matter at issue, absolutely in the hands of the counsel retained. The answer was, that there was a marked distinction between those powers which relate to the conduct of a trial, and the very opposite function of substituting either a compromise or reference, for a mandate to defend a claim could not imply a power to sacrifice it. The Court discharged the notice of trial in respect of the agreement, Lord Gillies observing:-" After the jury are sworn, a client is in the hands of his counsel. He may consent to a verdict going against the client, he may agree to the terms of a special verdict, he may lead as much or as little evidence as he sees cause: in all these proceedings the client is as much bound as if he directly sanctioned them. And when an agreement is made by counsel, on the faith of which the jury is discharged, parties are as much bound by it as if a verdict had been found in the same terms. It results from the power necessarily implied in the conduct of the cause, that parties should be so bound, and it is absolutely necessary for the administration of justice that counsel should possess the power to bind them." Another authority of the same kind is Currie v. Glen (9 D., 308), where the Court refused to grant a rule to show cause why a new trial should not be granted, in respect that the sole ground on which the motion was vested was, that the counsel who had conducted the case for the party threw it up, against his express directions and remonstrances, and so allowed a verdict to be returned against him. without his having an opportunity of being heard. Per Lord Jeffrey:-"Even though the party averred that the counsel had been bribed, that would not be a valid ground for giving a new trial, though it might form the foundation for a good action of damages against the counsel." It would seem, therefore, that in this country there can be no doubt on the point. The power, unquestionably, is an alarming one. But all danger of its abuse is prevented by its being entrusted to a profession exercised in the face of the public, and in which merit and integrity alike find their security in this,that all adventitious aids " are of no value before that force of public opinion, which will reject all tests but its own."

THE ADMINISTRATION OF THE ESTATES OF LUNATICS AND MINORS BY THE COURT OF SESSION.

WE have received the following communication from a correspondent of great experience in the profession :

I congratulate you on the excellent start which your Journal has made; and I congratulate the profession in at last having a medium for expressing its thoughts. It is not creditable to a profession so intelligent as ours, that they should have remained so long without an organ of their own, by which they might obtain practical information, up to the last moment, on the progress of the law, and by the aid of which they might defend themselves against the many unfounded attacks of which they are made the subject.

I do not, however, at present mean to trespass upon your pages with anything of the popular character of a defence of the profession from these general accusations. My subject is a more practical one, and, I hope, to many of your readers, one not destitute of interest. However limited may be the business of a professional man, the day will inevitably come, when he has a lunatic or minor for his clients, and when he must look around him for the means of administering their estates. In the course of a long professional life, I have found no part of my business so troublesome as this-not from any inherent difficulty in the subject itself, but from the difficulty of understanding a practice which has been changed every ten years within my recollection, according to the variations of judicial caprice.

The misfortune attaching to this branch of the law is, that the administration of it is so much of a discretionary character, that it is made to vacillate according to the bold or the timid disposition of the Judge. In the old days of Lord President Hope and Lord Gillies, the administration of the estates of minors, and of lunatics, was carried on in a mode which certainly involved as little expense and as little trouble as such a proceeding could reasonably be expected to occasion. In those days we were in use to obtain the most important warrants from the Court, upon the mere presentment of the petition in the single bills; and Mr Parker, who, in the year 1835, was Assistant Clerk of Session, was quite correct, when he told the Court, in the case of Livingstone, July 3, 1835, that it was the practice of the Court (and had been for twenty years before, as my early contemporaries can testify) to grant warrants to make up titles to pupils' heritage, to divide property, to grant leases; in short, to do all the ordinary and necessary things incumbent on a factor loco tutoris, without any intimation whatever in the minute-book, or service upon any one.

The First Division became reconstituted on the appointment of President Boyle to the chair. He had, as colleagues, as great masters of the law as have ever shed lustre upon the profession; and