Town of Alton v. Town of Gilmanton

Woodbury J.

The objections to the validity of this writing as evidence of notice, may be considered as two-fold.

1. That no attorney has ex officio sufficient power to bind his client to this extent.

2. If he has, that the writing is merely an executory contract, which the court cannot execute specifically.

An attorney being in court, instead of his client, or “ in his place and turn,” may make any disposition of the suit, and any admission of facts, which the party himself could make. 1 Salk. 86. — Tidd 34,

This results from the nature of his agency and the convenience of transacting business ; and exposes parties to no *521 unreasonable risks, since thej select their own attorneys, and if unfaithful, or in the language of the Mirror of Justice 35, “ if attainted of ill defence,” have a legal remedy against them for their misconduct. 7 Mass. Rep. 23 .—1 John. Rep. 258.—5 John. 368.—Tidd 60.—8 Mass. Rep. 51.—3 John. Rep. 185.—2 John Ca. 221.—15 Mass. Rep. 316.

(1) 16 Mass. (2)Pi5 Mass. Rep 316. (3)Hanover vs. Weare ante.

As specifications of Ids general power, it is daily practice for him to waive objections to evidence ; make admissions in pleadings or by parol, and enter nonsuits or defaults.

It has been adjudged, also, that, he may ex officio bring a writ of error;(1) sue out a scire facias ;(2) receive payments; (1 Wm. Bl. 8.—1 N. H. Rep. 365.—9 Cranch 226.—Doug. 623.—1 Salk. 88.-6 Mod. 82—2 Bos. & Pull. 357, note.— 1 Greenlf. 257,) execute releases on such receipt, ( 7 Mass. Rep. 238 .-8 John. Rep. 367—6 Do. 53.—10 Do. 220.—8 Coke 58,) or confess judgment.—6 John. Rep. 296, Denton vs. Noyes.—Tidd 64.—2 Kemb. 190.—2 Rolle Rep. 62, Gray vs. Gray.

More doubts exist concerning his power to release witnesses, ( 11 John. Rep. 464 , Murray vs. Haven.) or refer suits. Caldwell on arbitration 31.—7 Cranch 436, 449, Holker vs. Parker.

But however this may be, we are satisfied it is competent for him to waive as in the present case, any objections to a notice. 3 Cranch 297 , Buddicum vs. Kirk.

2. If this agreement had been made before the commencement of the action, or out of court, and not in part, executed by a continuance, the only remedy for a breach of it would have been a separate action.(3) 3 Mass. Rep. 451 .—2 John. 473 .—1 Saund. 48, not e.

, . . . ©ir «if offered in evidence merely as a confession in writing by thfepprty of the fact of notice, it might like other confessions be explained or contradicted, by showing the truth respecting the notice. 6 John. Rep. 19 .—7 John. Rep. 106, 10 John. Rep. 350 .—10 Mass. Rep. 40, Hallet et al. vs. Huse. —2 John. Rep. 306, 481.—6 Cranch 238, 339.

But having been made, after the action was entered, by officers of the court, in term time; and partially carried int# *522 effect, it becomes a portion of the files and memoranda (from which the record in the end may be drawn up) as much as the pleas and verdict.

Such agreements aré often made a parcel of the record, and cannot afterwards be evaded or avoided. Bac. Ab. “ Error,” K. 6.—17 John. Rep. 468, Yates vs. Russell. —1 Hen. Bl. 21.

It would seem doubtful from some of the cases, whether such agreements have not been specifically enforced, though not a part of the record. 1 Salk. 87, Latacch vs. Pasherante .—1 D. & E. 338, Wright vs. Null. —3 Cranch 297, Buddicum vs. Kirk. —17 John. Rep. 468, chancellor’s opinion.

Rut however that may be, we consider this agreement as a portion of the materials from which the record is to be thaJe up, and will not s'uffer the counsel or their clients to depart frpm it, unless on evidence to us, that the agreement vVas made by mistake, fraud, or surprize.

As all the case is yet in paper, we could on such affidavit allow the agreement like á plea under similar circumstances fo be withdrawn from the files ; but without such affidavits it must be held conclusive as to the validity of the notice.