Opinion of the Court-Crockett, J. foreclosure suit had notice and knowledge of the facts of the want of authority on the part of Patterson, and consent on the part of the defendants in the said foreclosure suit, to make the said stipulation, or to compromise the said action, and to put the said plaintiffs in the said foreclosure suit, upon inquiry as to the want of power or authority of Patterson to make and sign such a stipulation, and the want of consent of the said Prestons thereto. "That when the said Pearce told the said Patterson that the said defendants in the said foreclosure suit would not consent to the said stipulation, the said Patterson avowed to the said Pearce that he would assume the power, and compel them to abide by and submit to the said compromise. "I further find that on that day, in the evening, the court convened again, and the judge called the cause, when the said Thompson stated to the court that the said cause was settled, when the said Pearce, who was then present in court, stated to the judge, in the presence and hearing of said Thompson, that the said cause was not settled, and that the said defendants in the said foreclosure suit had refused and were opposed to any compromise of the said action of foreclosure. But, notwithstanding the statement of the said Pearce, the said stipulation was thereupon filed, and decree ordered, which decree was made, signed and entered that evening." On these facts we are called upon to decide whether the decree entered in the foreclosure suit is obligatory on the plaintiffs. The extent to which an attorney may bind his client has been several times considered by this court, and repeatedly by other courts, both English and American. It is held by all courts, without exception, so far as I am aware, that in the absence of fraud, the acts of an attorney in the ordinary conduct of a cause will bind his client. In this State the statute provides that he may bind his client "in any of the steps of an action or proceeding by his agreement filed with the clerk or entered upon the minutes of the court, and not otherwise." But in England and in this country the ques Opinion of the Court--Crockett, J. tion has frequently arisen, to what extent, if at all, and under what circumstances, if any, an attorney can bind his client by a compromise of a pending action, without the express authority of the client. In England the decisions are not uniform, and the question does not appear to have been definitely settled, though it has been much discussed in several recent cases, which tend strongly to support the rule which prevails in most of the American courts, denying the authority of an attorney to compromise a pending action, merely by virtue of his retainer, and without the consent of his client. In Swinfen v. Swinfen (24 Beavan, 549), decided in 1857, Sir Samuel Romilly, Master of the Rolls, after an elaborate examination of the authorities, concurs in this view of the question. On appeal, however, the case was decided on other grounds (2 De Geix & Jones, 381). But in a subsequent action brought by the same plaintiff against the attorney, Chief Baron Pollock, in delivering the opinion of the court, held "that although counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it, such as withdrawing the record, withdrawing a juror, calling no witnesses, * * and other matters which properly belong to the suit and the management and conduct of the trial, he has not, by virtue of his retainer in the suit, any power over matters which are collateral to it." (Swinfen v. Lord Chelmsford, 2 Law Times R. N. S. 406.) * In the United States, the rule, as settled by an almost uniform current of authorities, is that an attorney, by virtue merely of his retainer as such, and without express authority from his client, has not the power to bind the client by the compromise of a pending action. In Holker v. Parker (7 Cranch, 436) the facts were, that in an action on a money demand, the attorneys for the respective parties agreed that the matters in issue might be referred by the court to referees to make a report as to the accounts between the parties. The reference having been ordered, the attorneys agreed that the referees should award $5000 to the plaintiff in full of all demands. The award was made in accordance with this agreement, and judgment on the award was en Opinion of the Court-Crockett, J. tered for the plaintiff. The judgment was satisfied by payment to the plaintiff's attorney; but on being informed of these facts, the plaintiff repudiated the transaction on the ground that his attorney had exceeded his authority, and commenced an action to set aside the award and judgment, and for an accounting. At the trial there was no proof of fraud or collusion on the part of the attorney; but it appeared that a much larger sum was due to the plaintiff than was awarded by the referees. The Supreme Court set aside the judgment and ordered an accounting, on the ground that the agreement between the attorneys, as to the amount to be awarded by the referees, was in effect a compromise, and not simply an award; and that the plaintiff was not bound by the compromise, and the judgment in pursuance of it, on the ground that the plaintiff's attorney had exceeded his authority. The opinion of the court was delivered by Chief Justice Marshall; and the legal proposition decided was identical with that involved here, with this exception, that in this case it appears the client protested against the compromise before it was made, and against the entry of the judgment, in the presence of the court and of the opposing counsel, while in that case it only appeared that the client was ignorant of the compromise until after the entry of the judgment, and had not assented to it. In the present case, there was not only a want of authority in the attorney to make the compromise, but an active opposition to it by the client, of which the court and the opposing counsel were advised before the entry of judgment. In Smith's Heirs v. Dixon (3 Metc. Ky. R. 438), decided in 1861, the facts were that the plaintiff employed an attorney to prosecute an action in equity for the recovery of a valuable tract of land claimed by the defendants and in their possession. While the action was pending the plaintiff's attorney entered into a compromise, whereby, in consideration of a sum of money paid by the defendants, it was agreed that a decree be entered in favor of the defendants, quieting their title as against the plaintiff, and dismissing the complaint. The decree was accordingly entered, reciting on its face that it was entered by consent. On being informed of the facts, Opinion of the Court-Crockett, J. the plaintiff brought an action to set aside the decree, on the ground that the attorney exceeded his authority in entering into the compromise; and this view was sustained by the Court of Appeals. Peters, J., in delivering the opinion of the court, after reviewing the authorities, says: "The general question of the authority of an attorney has often been discussed in courts of justice, but it has not been held in any of them that an attorney, who is clothed with no other authority than what is incident to his retainer, can compromise and discharge his client's claim." After citing several authorities in support of the proposition, he proceeds to say: "We have been referred to no case which militates against the ruling in the foregoing cases, while many others might be cited which fully sustain them." After deciding that the decree must be set aside, he says: "A different conclusion cannot be reached (as we have seen) without infringing upon the well-settled rules of law, and sanctioning a dangerous power-too dangerous to be allowed by implication." To the same effect are Hudson v. Mitchell, 14 Serg. & R. 307; Stackhouse v. O'Hara, 14 Penn. St. 88; Stukely v. Robinson, 34 Id. 316; Abbe v. Rood, 6 McLean, 106; Derwent v. Loomer, 21 Conn. 245; Davidson v. Rozler, 23 Mo. 387; Fitch v. Scott, 3 How. Miss. R. 317; to which might be added many other cases. It is claimed, however, that a different rule has been established in this State by the statute and by the adjudications of this Court. As I construe the statute, it is only declaratory of the common law rule, except in so far as it provides that the "agreement" by which an attorney may bind his client, in any step in the action, "shall be filed with the clerk or entered upon the minutes of the court." It was not intended to enlarge or abridge the authority of the attorney; but only to prescribe the manner of its exercise, by requiring the agreement to be filed with the clerk or entered upon the minutes. The only adjudication by this Court to which our attention has been called, having any material bearing upon the point under discussion, was in Holmes v. Rogers (13 Cal. 191). That was an action to set aside a decree entered by the consent of the plaintiff's Opinion of the Court-Crockett, J. attorney, in pursuance of a compromise agreed upon by the attorney without the knowledge or consent of his client. This Court upheld the decree, on the ground that in the absence of fraud or mistake, a party to an action is bound by a judgment entered by the consent of his attorney, under the circumstances stated, and particularly if the attorney be not insolvent. For the purposes of this decision it is unnecessary to review the opinion and judgment of the Court in that case. It will be time enough to do so when a similar case shall come before us. But in the present case, the facts are quite different. In that case, all that appeared was, that the attorney, without the knowledge or consent of his client, compromised the cause of action, and consented to the entry of a decree in accordance with the terms of the compromise. In this case the attorney entered into the compromise in defiance of the protest of his client; and in open court, in the presence of the adverse attorney, the client remonstrated against it as having been made without authority, and insisted that the trial should proceed. The question for decision, therefore, is, whether by virtue merely of his retainer, an attorney may compel his client to submit to a compromise against his protest made at the time, and renewed in open court, in presence of his adversary, before the entry of the judgment. No case has been produced, nor do I think one can be found, in which any court has decided that such a proceeding can be upheld either on reason or authority. Whatever presumptions the court or the adverse party might ordinarily be authorized to make, as to the authority of an attorney who proposes to compromise his client's cause of action, all such presumptions must cease, when the client, before the transaction is consummated, notifies the court and his adversary, in the most formal manner, that his attorney has acted without authority, and that he repudiates the bargain. The attorney is but the agent of the client for the management and conduct of the cause; but his retainer does not give him an unlimited power to dispose of his client's estate, by way of compromise, against which the latter protests in the presence of his adversary, before the transaction is consum |