
    William Jenkins et al. vs. Mark A. Gillespie.
    The general doctrine that an attorney may submit a matter in dispute to arbitration, is limited to the case where there is a cause pending which he has been employed to manage.
    Therefore where W. J. and N. J. and G. signed a written agreement to submit a matter in controversy between them to the arbitrament of seven persons, and afterwards it was agreed in writing, signed only by W. J. and G., that five persons should act instead of seven, a majority of whom should be authorized to make the award, and accordingly an award was made by them, two dissenting; it was held, that N. J., who was not a party to this agreement, but whose attorney at law assented to it, without express authority so to do, was not bound by the award.
    Even admitting that an attorney has, in general, power to submit the cause of his client to arbitration, yet it seems he has no power to change the terms of submission made by the parties, where it does not appear, whether he was employed before or after the submission; nor to what extent his authority went.
    Appeal from the circuit court of Amite county; Hon. V. T. Crawford, presiding judge.
    A controversy having arisen between Mark A. Gillespie, of the one part, and William and Nancy Jenkins of the other part, as to whether certain slaves, held by the said William and Nancy were subject to a judgment, which said Gillespie had obtained against one Moses Whittington, the parties agreed to submit the matter to the arbitrament of seven persons, a majority of whom might make the award. Afterwards it was agreed between Mark A. Gillespie and William Jenkins,’ that there should be, instead of seven, only five arbitrators, a majority of whom might make the award. This last agreement was not signed by Nancy Jenkins. An award was made by a majority of the five arbitrators, (two dissenting) acting under this agreement, in favor of Gillespie; was returned to the circuit court of Amite county; and judgment was given thereon, by that court in his favor, and the sum of fifty-two dollars and eleven cents, was also adjudged to him for his costs and charges.
    The defendants moved the court for arrest of said judgment: because Nancy Jenkins one of the defendants, was not a party to the award; and had not notice of this proceeding; and because the judgment was contrary to law and evidence; which motion was overruled, and a bill of exceptions taken.
    It is necessary to notice only the deposition of James M. Smiley, that he was the attorney at law and counsellor of Nancy Jenkins and William Jenkins the defendants; that he saw William Jenkins, one of the defendants, and Mark A. Gillespie, the plaintiff, sign the original agreement to submit the difference between the plaintiff and defendants to arbitration, filed in the case, and dated the 5th day of June, 1844; that he was present at a meeting of some of the parties and arbitrators, and as attorney for both defendants, consented to the modification of said agreement, as made on the 24th July, 1845, by which it was agreed that the matter might be submitted to the arbitration of five persons. That he was present and saw William Jenkins and Mark A. Gillespie sign and seal the modification ; and witness, as attorney and counsellor for defendants, agreed to the modification.
    The 'defendants appealed.
    
      J. M. ¡Smiley, for appellant.
    1st. It was error to render judgment against Nancy Jenkins, she not having signed the agreement changing the number of arbitrators from seven to five.
    The change of agreement amounted to a new agreement, and Mrs. Jenkins who did not sign it, cannot be made liable under it any more than any other stranger to said agreement.
    2. It does not alter the case, that the attorney assented to the change of agreement. The attorney had no authority to change the agreement, and did not presume to do so. The change of the agreement amounted to a dismissal as to Nancy Jenkins, and to that, her attorney could not do otherwise than assent. Hand et al. v. the President and Selectmen of the Town of Columbus, 4 S. & M. 203.
    
      L. Lea, for Appellee.
    1. It has been frequently held, that an attorney’s agreement to refer, binds his client without any special authority. Somers v. Balalrega, 1 Dali. 164; HolkerY. Parker, 7 Cranch, 436; Buckland v. Conway, 16 Mass. 396 ; Talbot v. McGee, 4 Monroe, 377. The case of Hand et al. v. The President and Selectmen of the Town of Cohimbus, 4 S & M. 203, is not in point. There, it did not appear that the defendants agreed to the reference either in person or by attorney.
    2. In England, it has been decided, that an attorney has power to submit a cause to arbitration, and thereby bind his client, although he expressly desired the attorney not to consent to a reference. The client’s only remedy in such case, being by an action against the attorney for damages. Thomas v. Hews et al. 2 C. & M. 527, et seq.; Filmer y. Dolber, 3 Taunt. 486; 1 Chit. 193.
    3. If an attorney can bind his client by a reference in the first instance, without arid against the client’s consent, a fortiori^ he has power to modify the terms of submission, where the client has agreed to refer.- . And so it has been held, that an enlargement of the time for an arbitrator to make his award by consent of the attorney, will bind. his client. Rex y. Hill, 7 Price, 630.
   Per Curiam.

It seems that Gillespie, claimed the right to subject certain negroes in possession of, and claimed by, Nancy Jenkins, to an execution in his favor against one Whittington, on the ground of a liability which had attached before the said Nancy acquired title.

In order to settle the matter amicably, the parties agreed to submit it to the arbitrament of seven persons, and accordingly all signed an agreement for that purpose, in which it was also agreed that it should be made a rule of court, on which judgment should be entered according to the award.

Subsequently it was agreed in writing, signed only by William Jenkins and Gillespie, that five persons should act instead of seven, a majority of whom should be authorized to make the award, and accordingly an award was made by three, two dissenting.

Nancy Jenkins was not a party to this last agreement, unless she is bound by the assent of her attorney at law, James M. Smiley,1 who states that he was attorney for Nancy Jenkins, and assente.d to the modification of the submission; and the question is, whether Nancy Jenkins is bound by the award.

The general doctrine is that an attorney who is employed in a suit, may submit the matter in dispute to arbitration, because he may do anything, by the implied assent of the client arising from his employment in the suit which the court may approve in the progress of the cause. Kyd on Awards, 27. The reason of the rule shows its limit. There must be a cause pending which the attorney is employed to manage. This was a submission made under the statute, when no suit was pending. In such cases the matter is not necessarily placed in the hands of an attorney. It is out of the line of his appropriate duty, and to make such a submission binding, he should have express authority. Smiley does not say that he had any such authority. But admitting that an attorney has in general power to submit, has he power to change the terms of submission made by the parties ? That is changing their contract. Smiley, does not say whether he was employed before or after submission; or to what extent his authority went. Under such circumstances, we think it would be going too far to say that his assent to the change was binding on his client.

Judgment reversed.  