
    [Sunbury,
    July 5, 1826.]
    HUSTON against MITCHELL.
    IN ERROR.
    An aUol'ney'ut law, on record, is authorized to do those things only, which pertain to the conducting of the suit; and has no power to make a compromise by which land is to be taken instead of money.
    The Court of Common Pleas has no right to set aside a judgment entered upon a verdict, without setting aside the verdict also.
    
      Charles Huston, the plaintiff in error,
    brought this action on the case in the Court of Common Pleas of Tioga count)1, against Richard Mitchell, the defendant in error, to recover the purchase money of a tract of land, sold, by the plaintiff to the defendant. At September Term, 1824, the plaintiff obtained a verdict for five hundred and ninety-two dollars, for which judgment was immediately entered. On the 17th of February, 1825, the defendant obtained a rule to show cause, .by the first day of May Term, why the judgment' should not be opened. On the 17th of May, 1825, on argument and affidavit filed, the court made an order that the judgment should be opened. The plaintiff sued out a writ of error on this judgment, returnable to June Term, 1825, when the following agreement was made and filed in this court: “On hearing of this case, the order of the court below'of the 17th of February > 1825, and all subsequent orders, struck off, and the judgment to remain, as if no order had been made. ■ But if the defendant transfer to the plaintiff the land purchased of him, clear of incum-brances done or suffered by the defendant, and which was the eon-' sideration of this suit, on or before the Thursday of the September Tioga court, then the plaintiff will enter satisfaction on this judgment.” Signed, liThomas Burnside, for Charles Huston. H. Williston, attorney for the defendant.” As soon as the plaintiff was informed of this agreement, which was a few days after its date, he came to the court and moved that, it might be vacated, at the same .time making affidavit, that he had never authorized Mr. Burnside to enter into such a compromise. Mr. Burnside also declared in writing, that he was not employed by the plaintiff as his attorney, but made the agreement as his friend, supposing, from something which he had heard him say, that such a compromise would be agreeable to him. It appeared, that Burnside was not the plaintiff’s attorney on record.
    
      On a rule to show cause why the cause should not be reinstated, and'the parties proceed to the argument, on the errors assigned;
    
      Campbell and Greenough, for the plaintiff in error,
    stated the question to be, whether or not Mr. Burnside, who compromised the suit in the court below, had authority to malte the compromise? The authority is positively negatived, not only by the plaintiff, but by Mr. Burnside himself. If he had been the attorney on record, his powers would not have embraced such an act. An attorney cannot even acknowledge satisfaction without receiving the money. 8 Johns. 367. But Mr. Burnside had not even .the general authority of an attorney on the record, having made the compromise merely as a friend, under the impression that it would be satisfactory to the plaintiff. •
    Williston, for the defendant in error,
    contended that Mr. Burnside appeared as the attorney of the plaintiff, and his agreement of compromise was binding on his client. When an attorney appears, the court looks no further, but leaves the party to his action, if the attorney had no power. Jackson v. Stewart, 6 Johns. 34. If an attorney appears and confesses judgment, it is good although he has no power, and the party injured is left to his action against the attorney; but the court will inquire into the matter and do justice, if the attorney be insolvent. This is the law of England. In New York, if the attorney has no power, the court will let the defendant into a defence on the merits, preserving the lien of the judgment. 6 Johns. 296.
    The Court declared they had no doubt that the cause should be reinstated, and the' argument proceeded in, and said that an opinion in writing should be delivered.
    
      Williston, on behalf of the defendant in error, then moved to quash the writ of error, on the ground that the action was still pending below. It now stands, he said, upon the verdict, and the plaintiff, instead of issuing a writ of error, which does not lie in such a case, ought to have applied for a mandamus, directing the court below to enter judgment.
    The counsel for the plaintiff in error answered, that the court below had made a. final order, depriving the plaintiff of the benefit of his verdict, without ordering a new trial. There was no redress except by. writ of error. Whenever the cause is brought to an end, a writ of error lies. An order dismissing an appeal, is in the nature of a judgment, and is the subject of a writ of error. 3 Binn. 273. The order of the court, in the present ease, amounts to an -arrest of judgment. .
    The Court told the counsel to proceed in the argument of -the errors assigned, afterhearing which, they would give their opinion, both on the motion to quash, and on the errors assigned, if it should be necessary.
    
      Campbell and Greenough, for the plaintiff in error,
    contended,
    1. That there was error in opening the judgment on a verdict at the third term, on a motion made at the second term. In ordinary cases, the court cannot set aside a verdict if a term has intervened between the verdict and the motion to set it aside. Nothing but fraud would authorize such an order. Ewing v. Tees, 1 Binn. 455.
    2. Supposing the court to have possessed the right to open the judgment, at their discretion, it must be shown that there was good ground for the exercise of that discretion; and this must appear on the record. The order of the court appearing on the record, went no further than to open the judgment., which deprived the plaintiff óf the benefit.of a verdict, and amounted to a perpetual injunction; and- for this no reason is assigned.
    Williston, contra.
    There can be no doubt of the right of the court to set aside, both a verdict and a judgment. Eeigal v. Woods,
    
    1 Johns. Ch. B. 402. Cases may easily be supposed, in which the court may inquire into the manner in which a judgment has -been obtained. A verdict may have been proeüred by fraud, and if the court do not possess the power to open the judgment., the grossest' injustice may go unpunished. The reasons which induce the court to exercise this discretipnary power, may be of the most powerful bind; but as it is not usual to put reasons on the record, in such eases, they must be unknown to this court. The order, in this case, did not amount to a perpetual injunction. • The intent was, that there should be a new trial, and the judgment was ope.ned with that view. A mere clerical omission, has prevented this intent from appearing on the record. .
   The opinion of the court was delivered by

Tilghman, C. J.

Supposing Mr. Burnside to have been the plaintiff’s attorney on record, he would only have been authorized to do such things as pertained to the conducting of the suit. It is said, by Chief Justice Maeshall, who delivered the opinion of the court in Holker v. Parker, (7 Crunch, 452,) “that an attorney at law, merely as such, has, strictly speaking, no right to make a compromise,” but that he has a right to' enter- into a reference. The compromise, in that case, was, by the attorneys on both sides, eonsénting that the referees should make an award for the plaintiff for a certain sum, without any examination of the evidence, or accounts of the parties. -That compromise fell much' more within the general power to conduct the suit, than the one now under consideration. There, the suit was for money, and the attorney •agreed to take an award for money. But here, the object of the plaintiff’s suit, which was for the recovery of money, was entirely defeated by an agreement to take land instead of money. I cannot conceive how the authority to make such a compromise, can be deduced from the general power of an attorney at law. If the plaintiff, on being informed of the agreement, had not immediately disavowed it, I should have thought, that, his silence would have afforded ground for presumption, that he had given power to-malte it, or was wijling to ratify it. But his prompt disavowal leaves no room for such a presumption. If the agreement is set aside, the defendant is in no way injured. He is placed exactly in the situation, in which he stood before it was made. I am of opinion, therefore, that the agreement should be vacated.

This preliminary point being settled, I will consider the errors which have been assigned on this record. There is but one of any Weight, viz. “that the award, or judgment, of the court below, reverses a regular judgment, and makes an end of the plaintiff’s claim, and amounts to a perpetual injunction, as the verdict is not set aside or affected.” It was said by the counsel for the defendant, that the intent of the court was' to order a new trial, but the prothonotary made a mistake in entering the order. This is very possible, but we must take the record as we find it. As it stands, it is a simple order, that the. judgment he opened. I shall give no opinion on the power of the Court of Common Pleas to.set aside a verdict and judgment, and order a new trial, on a motion not made until the second term after the entry of the judgment. But granting, for the sake of the argument, that they have the power, •is the order made in this case legal? I do not think it is because it does not amount to a judgment in favour of the defendant, and yet leaves the plaintiff without the means of proceeding in his suit. The verdict is not set aside, though the judgment entered on it is rendered ineffectual. The plaintiff can neither enter judgment on the verdict, nor take oút a venire facias de novo.' This is a situation in which the court had no right to place him. They have made an end of the suit, without showing any ground for so doing. Indeed one cannot help seeing, that it could not have been their intent to make an end of it, although by the record, from which we cannot depart, it appears that in effect they have done it. I am of opinion that in this there was error, and therefore the order to open the judgment should be reversed, and the record remitted, to be further proceeded in according to law.

Ordér-reversed, and record remitted, &c.  