ing that Mr. Simpson never at any period of the discussion intimated that he was acting without authority from his client.

R. Kennedy showed cause.-When this matter was before the court on the former occasion (18 C. B. 485 (E. C. L. R. vol. 86)), the materials on which to form a correct judgment were *wanting. The *380] court will not, therefore, hold itself bound by what took place then. [CRESSWELL, J., intimated that the argument would sustain no prejudice from what fell from the court upon the former rule.] The authorities upon this subject are numerous, and somewhat conflicting,— a confusion having been introduced into it from a want of properly distinguishing between the duty and power of the attorney and those of the counsel, and between the power to refer and the power to compromise a suit. The affidavits now before the court in some of their particulars are perfectly irreconcilable with each other, and lead to the irresistible conclusion that there is wilful misstatement on one side or the other. One thing, however, is manifest, viz. that the plaintiff never gave any authority either to her counsel or to her attorney to enter into the agreement that has been entered into on her behalf: and there is no case in the books which has decided that either counsel or attorney has authority to enter into a compromise involving matters foreign to the record, without the consent of the client. The counsel is the advocate, not the agent of his client. His instructions may be more or less vague; but, whatever they are, he must confine himself strictly within their limit. Most of the cases have arisen out of matters addressed to the discretion of the court, and those chiefly in courts of equity, where a larger degree of latitude is allowed than in actions at law, where the issue to be decided is upon the record. The form of the venire shows that this must be so; for, neither the court nor the jury have power to do anything else than to try the issues presented to them. Counsel may, indeed (his brief having been delivered), withdraw the record, or consent to a nonsuit or a verdict against him, or may assent to a verdict passing for a sum less than that claimed by his client: but he cannot travel out of the record: he is not the general agent of the client. All his authority is derived from the instructions contained in his brief, with reference to the matters in issue upon the record: and it has been held that he is not answerable for any matter spoken by him relative to the cause in hand, and suggested in his client's instructions, although it should reflect upon the reputation of another, and even prove absolutely groundless; but, if he mentions an untruth of his own invention, or even upon instructions, if it be impertinent to the cause in hand, he is liable to an action at the suit of the party injured: Brook v. Sir Henry Montague, Cro. Jac. 90; Hodgson v. Scarlett, 1 B. & Ald. 232; Ahitbol v. Benedetto, 3 Taunt. 225, 2 Campb. 487; Richardson v. Peto, 1 M. & G. 896 (E. C. L. R. vol. 39); 3 Bl. Com. 29. Even the attorney's power, though necessa

*381]

rily more extensive than that of the counsel, is limited to steps in the cause. (a) The distinction between the powers and duties of attorneys and those of counsel, are well pointed out in Story on Agency, § 24, and Colquhoun's Summary of the Roman Civil Law, Vol. 3, § 2207, and in two very able articles in the Law Magazine, Vol. 12, p. 26, and Vol. 20, p. 269. It has been decided that an attorney may refer a cause to arbitration-Filmer v. Delber, 3 Taunt. 486: but that proceeds upon this principle, that a reference is only a mode of trying the cause. It may be that counsel have the like authority, after brief delivered; but the authority is at all events limited to the cause: Baillie v. The Edinburgh Oil Gas Light Company, 3 Clark & F. 639. The strongest dicta in favour of the power assumed to be exercised here, are those to be found in Mole v. Smith, 1 Jac. & W. 673, and In re Hobler, 8 Beavan, 101. But, in equity, the counsel has a much larger discretion than he has at law; and, on the last-named occasion, the *language of the Master of the Rolls (Sir L. Shadwell) went much beyond the necessity of the case. Butterworth v. Clap[*382 ham, in the note to Mole v. Smith, is somewhat at variance with Lord Eldon's dictum in the principal case. In Knipe v. M'Mahon, 4 Drewry & Warren, 295, the Lord Chancellor (Sugden) said that "counsel were perfectly justified in acting upon their own discretion and judgment, in determining whether a minor heir-at-law should take an issue of devisavit vel non, and that Lord Chancellor Eldon had expressed an opinion to the same effect." Elworthy v. Bird, Tamlyn, 38,(b) is a distinct authority to show that the court will in a case like this, inquire whether or not counsel had the authority they professed to exercise. There, the husband, being prosecuted and found guilty at the quarter sessions of an assault upon his wife, the court recommended an accommodation of the disputes and differences between them. The counsel of the parties signed a memorandum of agreement, that the husband should allow the wife an annuity of 501., and the court, adverting to the arrangement, passed sentence upon the defendant, imposing only a nominal fine upon him. It was proved that the defendant's attorney stated publicly in court that the defendant had come into the agreement, and that the defendant was in court when the arrangement was entered into. The defendant, by his answer, denied that he ever consented to it; and on his part there were depositions which to some extent supported it. Upon a bill filed for a specific performance, it was held, that it was not incumbent on the plaintiffs to prove that the defendant did assent to the agreement entered into by his counsel, but on the defendant to disprove

(a) In Richardson v. Peto, 1 M. & G. 896 (E. C. L. R. vol. 39), Tindal, C. J., says, “The attorney admitted to prosecute or defend represents his client throughout the cause; but a counsel represents his client only when speaking for him in court."

(b) See this case, upon demurrer to the bill for want of equity, 2 Sim. & Stu. 372. And see 13 Price, 222, 9 J. B. Moore, 430 (E. C. L. R. vol. 17), 2 Bingh. 258 (E. C. L. R. vol. 9).

*383] it; that the *weight of the evidence being that the defendant did

not dissent, the court would conclude that counsel had authority; and that the plaintiffs were entitled to a decree for a specific performance, with costs. The Master of the Rolls (Sir John Leach) said: "This agreement concludes the parties; and the only question is, whether the counsel had sufficient authority. In the absence of evidence, a court will conclude that he had authority; for, it is not to be presumed that counsel would enter into an agreement without authority. There is in this case evidence on both sides: but, after duly considering it, I come to the conclusion that counsel had no authority which would bind his client. The defendant, it is true, objected when the arrangement was first proposed but, the question is, did he not afterwards, impressed with the weight of his counsel's reasoning, assent? His counsel swears that such arrangement was concluded between the parties, and Mr. Bird was present. The chairman, in passing sentence, said, 'I impose a nominal fine upon you, because you have entered into the arrangement.' It necessarily follows that the plaintiffs are entitled to a decree for a specific performance, with costs." No case is to be found where counsel has been held to have power to bind his client, where he acts in defiance of his client's instructions, and against his will. An agreement entered into with the defendant's assent at sessions, was upheld in Porter v. Cooper, 1 C., M. & R. 387,† 4 Tyrwh. 456. Lord Langdale, in Hargrave v. Hargrave, 12 Beavan, 408, refused to enforce an arrangement very similar to the present. In Furnival v. Bogle, 4 Russ. 142, it is assumed that the client would not be bound by an agreement entered into by his counsel in ignorance or under a mistake of facts. In Colledge v. Horn, 3 Bingh. 119 (E. C. L. R. vol. 11), 10 J. B. Moore, 431 (E. C. L. R. vol. 17), Burrough, J., says that a statement made by a counsel upon his address to the jury, in the hearing of his client, is binding on the client, if he makes no objection. But, in Machell *384] v. Ellis, 1 Car. & K. 682 (E. C. L. R. vol. 47), Pollock, C. B., declined to hold the client bound by the opening of his counsel. In the case of attorneys, their authority extends over the whole course and progress of the cause. The attorney's acts bind his client; and, even where he acts without any authority, the party for whom he as-¡ sumes to act is bound by what he does, except in the single case of the attorney being insolvent: Anonymous, 1 Salk. 88; Mudry v. Newman, 1 C., M. & R. 402;† Bayley v. Buckland, 1 Exch. 1.† In equity, the rule is different there, the attorney is required to have an authority in writing: Pinner v. Knights, 6 Beavan, 174; Hood v. Phillips, 6 Beavan, 176. In Bodington v. Harris, 1 Bingh. 187 (E. C. L. R. vol. 8), the court set aside a consent rule to abate a nuisance, on the ground that it had been agreed to by the defendant's attorney without his assent, and against his express directions. Thomas v. Hewes, 2 C. & M. 519,† 4 Tyrwh. 335, is also a strong authority to show that the court ought not

to interfere to enforce the agreement by this summary process. There are numerous cases to show that there are limits to the authority even of the attorney. Thus, an authority to proceed in an action to recover a debt, does not warrant the attorney in opposing the party's discharge in the insolvent debtors' court: Drake v. Lewin, 4 Tyrwh. 730. So, the attorney has no power to discharge a defendant from execution. The American courts repudiate the right of attorneys and counsel to make compromises without express authority from their clients: Holker v. Parker, 7 Cranch, 436; Maule v. Maule, 4 Dev. 363; Robert v. The Commercial Bank, 13 Louisiana, 532. Then, this is not a case in which there is any necessity for resorting to an attachment for the purpose of enforcing the agreement. It raises an important question, which ought not to be disposed of summarily, and without giving an opportunity for *appeal. The granting or withholding an attachment is discre[*384 tionary with the court: Stock v. De Smith, Cas. t. Hardw. 106; Wilmot v. Allen, there cited; Sir Thomas Hales v. Taylor, 2 Stra. 695; Thornton v. Hornby, 8 Bingh. 13 (E. C. L. R. vol. 21), 1 M. & Scott, 48 (E. C. L. R. vol. 28), 1 Dowl. P. C. 237; In re Cargey v. Aitchison, 2 D. & R. 222 (E. C. L. R. vol. 16); Hetherington v. Robinson, 4 M. & W. 608;† Stalworth v. Inns, 13 M. & W. 466,† 2 D. & L. 428; Peterson v. Ayre, 15 C. B. 724 (E. C. L. R. vol. 80); Hemmingway's Arbitration, 15 Q. B. 305(b) (E. C. L. R. vol. 69); 3 N. & M. 860 (E. C. L. R. vol. 28); Mendell v. Tyrrell, 9 M. & W. 217.† This is not an award, but a contract, a contract relating to an interest in land, which the statute of frauds requires to be in writing and signed by the parties to be charged. This instrument is not signed. If it is a contract, why is it to be carried into effect by a judge's order or a rule of court? The only proper course is, to apply to a court of equity for a specific performance. Then, this was an issue directed by the Master of the Rolls, to inform the conscience of the court as to the validity or invalidity of the will of Samuel Swinfen. When an issue is so directed, the whole and sole control over the record is in the court which directs it. When this matter was before this court on the former occasion, it was supposed that the statute 8 & 9 Vict. c. 109, s. 19, made a difference in this respect. That, however, is manifestly a fallacy. Before that statute, when an issue was directed by the Court of Chancery, it was returned to the court from which it emanated, and nothing further was done with it here but, where an action was directed to be brought, a writ issued, and the parties proceeded to trial as in ordinary cases, and all the subsequent steps necessary in the action were taken in the common law court. In the case of an issue, there could be neither judgment,Dickenson v. Eyre, 7 Q. B. 307, n. (E. C. L. R. vol. 53),-nor execution, nor bill of exception,-Lewis v. Armstrong, 3 Mylne & K. 52,— nor writ of error,-King v. Simmonds, 7 Q. B. 289, 312; *Thorpe v. Plowden, 2 Exch. 387,†-nor an amendment at Nisi Prius under

[*386

the 3 & 4 W. 4, c. 42, s. 23,-James v. Lynn, 13 Q. B. 845 (E. C. L. R. vol. 66), nor an endorsement of a special finding upon the record, under s. 24,-Brown v. Hutchinson, 13 Q. B. 185. The statute does not affect to deal with the jurisdiction: and, if the court assumes the power of enforcing this arrangement by attachment, it will be indirectly doing that which by law it cannot do directly. In a case of Bird v. Kerr, now pending before Wood, V. C., a motion for a new trial of an issue which was tried before Willes, J., at the last assizes at Newcastle, was made in the court by which the issue was directed. And such has always been the practice, whether before or since the 8 & 9 Vict. c. 109. It will probably be urged on the other side, that it would operate injustice upon the defendant to deprive him of the benefit of this compromise, after he has incurred expense in relation to it. But the answer to that, is, that the defendant is in no worse position in that respect than is every one who finds he has been dealing with an unauthorized agent: he may have a remedy against the agent: per Bayley, B., in Thomas v. Hewes, 2 C. & M. 530, n.;† Kennedy v. Gouveia, 3 D. & R. 503; Russell on Arbitration, 2d edit. 27. [The learned gentleman(a) *concluded by observing in very unmeasured language upon the *387] affidavits of the plaintiff's counsel; and contended, that, upon the whole, it was manifest that they had not the authority which they professed to exercise in entering into the compromise.]

W. R. Cole also appeared to show cause against the rule. He submitted, that Mrs. Swinfen's refusal to hold herself bound by the compromise entered into on her behalf, was not a wilful contempt of the order of the court, but was founded upon a bonâ fide conviction that she was not compellable to carry out an agreement to which she was no party, and which had been made not only without her sanction, but in defiance of her express prohibition; that, this being a proceeding against which there was no appeal, the court would only act upon the clearest and most unequivocal evidence; and that the rule of practice which requires parties to come prepared with proper materials at first, had never been relaxed in a case of this sort.(6) He then proceeded to urge the several points, and to cite the several authorities following:

1. That the rule should have been reserved in a proper manner, and (a) Towards the close of his argument, the court having been adjourned from the 24th of November to the 1st of December, Kennedy asked leave to file fresh affidavits on the part of the plaintiff, in answer to the affidavits of Sir F. Thesiger and Messrs. Alexander, Whitmore, and Gray, under the 17 & 18 Vict. c. 125, s. 45.

He urged, in excuse for the lateness of the application, that he had had no opportunity of consulting with his client as to the contents of those affidavits when they were placed in his hands on the former day.

CRESSWELL, J.-Had you asked at the time for an opportunity to examine the affidavits, the court would probably have had no difficulty. The course now proposed, after so long an argument, is fraught with extreme inconvenience. If the plaintiff were allowed now to file new affidavits, we should probably be asked the same indulgence by the other side, and the case would never end.

CROWDER, J.--The application should have been made at the time. It is now too late. (b) The former rule was discharged expressly without prejudice to a renewed application.