
    Herbert v. Alexander.
    [October Term. 1800.]
    Attorney and Client, — What agreement of an attorney will bind Ms client.
    Alexander brought an action on the case against Herbert in the District Court, and declared, that whereas sometime in the year 178 an action of ejectment was instituted in the General County by Charles Alexander against William Bryan, Benjamin Vanpett and Charles Curtis lessees and tenants of the said Herbert; and whereas the said Herbert employed Edmund .Randolph attorney at law, then practicing in the General Court, to defend the said action of ejectment on behalf of himself and the said tenants, by virtue of which authority, and with the consent of the said William Herbert, he the said Edmund Randolph on the day of 178 then and there agreed with the said Charles Alexander, that if judgment should be rendered in favor of the plaintiff in the said ejectment, it should be entered against the said William Herbert and Dennis Ramsaj' for their respective tenants, and averred that the said Bryan, Vanpett and Curtis were the tenants of Herbert, and that judgment was rendered in favor of the plaintiffs for the lands and his costs; by reason whereof Herbert became liable to *pay to the plaintiff the costs ; and being so liable assumed upon himself and promised to pay &c. with an averment of the amount of the costs.
    There was another count to the same effect. The defendant plead non assumpsit; and the plaintiff took issue.
    Upon the trial of the cause the defendant filed a bill of exceptions, to the Courts opinion, stating, that the plaintiff offered in evidence a copy- of the declaration in ejectment, and various steps in the cause (setting them forth;) and stating also, that the plaintiff proved by sundry witnesses, that Charles Little and the defendant employed Edmund Randolph to defend the suit, and paid the costs; and that Herbert, as guardian of his son John Herbert, received some rents from the tenants, and had the charge of some slaves on the land, and claimed the said land as guardian of his said son ; and that wood was cut off the land and carried to Herbert. That it was also proved that the tenants had moved off the land before the trial of the ejectment; and some of them complained that they were made defendants. That the plaintiff also produced a writing signed by Edmund Randolph attorney employed as aforesaid, to defend said suit in these words:
    “Alexander v. Vanpett &c. should judgment be rendered in favor of the plaintiffs, it shall be entered v. William Herbert and Dennis Ramsay for their respective tenants.
    Edm. Randolph.”
    That this was signed previous to the trial of the said ejectment. It likewise set forth an execution against the tenants for the costs, which was returned no effects. That the' defendant prayed the opinion of the Court, whether the said writing was binding on the defendant William Herbert? And whether, he the said William Herbert is chargeable with the costs of the ejectment under the foregoing circumstances, in this action?
    *That the court was of opinion, that the said writing was binding on the said William Herbert, as being executed' by the said Edmund Randolph, in the line of his duty, to enable the parties interested in the title of the said land then in question to have a fair trial; although it was proved that the said William Herbert the defendant was not present at the time the said engagement was entered into, and it was not proved that the said - William Herbert the defendant either verbally, or by writing, ever authorized the said Edmund Randolph to enter into such engagement.
    It appears by the proceedings in the ejectment, as if the declaration (which is in the name of Timothy Goodtitle, on the demise of the plaintiff Charles Alexander) had been originally filled up against Bryan, Vanpett, Curtis and Railings the tenants in possession. After which the names of Lintle and Herbert seem to have been inserted. The tenants names those of Wronghead the casual ejector of Little and Herbert then appear to have been erased, and "the names of the tenants only inserted. Not guilty is put at the foot of the declaration ; and Mason added for the plaintiff and Randolph for the defendant. It appears to have been once indorsed Alexander v. Wronghead, Little &c. but the words, Wronghead, Little &c. are erased; and the words, Bryan & al., inserted. On the 24th of April 1783. The suit after various continuances appears to have stood in the name of Timothy Goodtitle against Erancis Wronghead; and upon that day, Little and Herbert were, on their motion, made defendants, and by Edmund Randolph, their attorney, plead the general issue &c. In October 1783, the tenants, with the consent of the plaintiff, were again admitted defendants, in the room of Little and Herbert; and by Ran-ddlph their attorney plead the general issue &c.
    *The jury found a verdict, and the court gave judgment for the plaintiff. Erom which judgment Herbert appealed to this court.
    Randolph for the appellant.
    The distinction is between an act collateral to, and one which is directly within the duty of the attorney. 3 Vin. ab. 304. The last is binding on the client, but not the former; and here the agreement was entirely collateral.
    Call contra.
    The agreement was not collateral, but directly within the attornies duty; and if a rule of consolidation had been applied for, it would have been granted, as all the suits were relative to the same object, and depended on the same title. The application was probably dispensed with, for the sake of convenience, amongst the counsel; and therefore it ought to be obligatory on their clients. The record clearly proves, that he was Herbert’s | attorney; and therefore had authority to consent for him.
    Cur. adv. vult.
    
      
      -Attorney ami Client — Right of A C arnee to Release Client’s Interests. — The principal case is cited in Gregory v. Marks, 1 Rand. 383, for the quiere: is it competent for an attorney to waive or release the interests of his clients, insisted upon in their answer, more especially of a feme covert, and she an infant?
      See generally, monographic note on "Attorney and Client” appended to Johnson v. Gibbons, 27 Gratt. 632.
      Landlord and Tenant- Right of Landlord to Defend. - - It was held In Hanks v. Price, 32 Gratt. 107. that in an action of ej ectment, brought against the person in possession, the landlord of such person may come in and be allowed to defend the action under sec. 5, ch. 131, Code of 1873, whether the actual relation of lessor and lessee exists between them or not. The court, on page 109 of this ciase, said: “In Herbert v. Alexander, 2 Call 498, decided long anterior to our statute, the right of the landlord to be made defendant was fully recognized by this court.”
    
   ROANE, Judge.

The decision of this case turns upon the power of the attorney to bind the appellant, by the agreement stated in the bill of exceptions.

It states, that a declaration, in ejectment, was served upon all the tenants in possession; that, in April 1783, Herbert and Little were made defendants, on their motion; and that, in October 1783, the tenants were made defendants, with consent of the plaintiff, in the room of Little and Herbert.

This last order is not stated, to have been made, on the motion of the tenants; but, however the case may stand, as to the liability' of the defendants, who are made so, without their own application, this" order clearly discharged the appellant as a defendant.

*The tenants in possession are the proper, if not the natural defendants to an ejectment; although the landlord has a right to be made a defendant, through fear that he may be injured, byr a combination between the plaintiff and his tenant; but he may waive this right, or having asserted it, he may relinquish it, by consent of the plaintiff.

The question then is, whether, after the order of October 1783, the attorney was the appellants attorney, so as to subject him to costs of the suit? And I presume he was not. He was the attorney of the then defendants. The direct end of his functions, as such, was to finish the suit, between the real parties to it; and it was certainly collateral to that end, to bring in another person, as a defendant; and subject him to costs, who had been discharged by consent' of the plaintiff.

The authorities, cited by the appellants counsel, shew, that the powers of an attorney do not extend to this collateral matter.

The bill of exceptions states, that the appellant employed Mr. Randolph, and paid the costs of the tenants; but this is the mere common case of one man (perhaps ultimately interested) defending a suit in behalf of another: His acting, however, being merely voluntary; and the attorney, employed by him, being the attorney of the party to the suit, and not his attorney.

It is stated, in the bill of exceptions, that the defendants had moved away, before the trial; but it is not stated, that this removal had taken place before the agreement, made, by the attorney. So that it may be, that the appellant, who had been discharged by consent of the plaintiff, was again subjected, as defendant; when the real defendants were on the premises, and responsible persons.

Upon the whole case, although perhaps justice would be promoted and circuity of action avoided by holding the appellant liable, yet it cannot be done, without infringing the principles of law, *and establishing a dangerous precedent. Therefore I think the judgment ought to be reversed.

FLEMING, Judge.

If the agreement was binding, at all, the plaintiff should have had his judgment so entered up, and not have put the appellant, unnecessarily, to the costs of another suit, about it. But it ■certainly would be an extremely dangerous principle to lay down, that the agreement •of an attorney, in a suit between other persons, should bind a man not before the court, without his consent or knowledge. I cannot bring my mind to assent to such a proposition. Besides it appears, to me, that the plaintiff, by taking his judgment against the tenants, and pursuing them, with an execution, waived the benefit of the promise, if it ever was binding upon the defendant. Upon the whole, I think the judgment is erroneous, and ought to be reversed.

CARRINGTON, Judge.

Concurred, that the judgment ought to be reversed.

LYONS, Judge.

It is extreme^' probable, that the attorney was authorized by the defendant to make the agreement; but as no such authority specially appears of record, the question is, whether the agreement binds the defendant, who was no party to the suit?

An attorney at law only represents the plaintiff or defendant in court, to do such acts as the plaintiff or defendant, if in court, might do .himself; but he has no right to enter into private or executory contracts. Such a dangerous power ought not to be implied; especially against a stranger to the suit, who had no occasion for an attorney to represent him in it. For if so, he might subject any person he pleased (although such person was no party to the suit) to payment of the debt, damages and costs: Which would be intolerable.

I am therefore of opinion, that the direction, given by the District Judge, was wrong; and consequently *that the judgment ought to be reversed, and a new trial awarded.

PENDLETON, President.

It appears by the record that the Judge directed the jury, on the motion of the plaintiff, that Mr. Randolphs agreement was binding on his client Herbert, as being within the line of his duty, to enable the parties interested in the title to have a fair trial; although it was proved that Herbert was not present at the time, and it was not proved that he ever, verbally or by writing, authorized Mr. Randolph to enter into such engagement.

And the question is, whether this was a misdirection?

For although I am satisfied, that the jury might fairly have presumed Herbert’s consent either previous or subsequent, yet since they might have been influenced bjr the direction, if that was wrong, there should be a new trial.

To come to the real question, it is necessary to establish some positions, which appear to me to have influence.

1. That although in ejectments tenants are made defendants, and in subsequent suits for mesne profits are, in some instances, considered as defendants, yet the landlord, whose title is controverted, is in fact the real and essential party; and ought in justice to pay the costs of the contest, If they fail.

2. Ejectments, although possessory actions, are used to try titles; and being compounded of fiction, the proceedings are more under the power of the Court than ordinary cases; and that they may, pending the suit, judge of the admission, or change of defendants, as may appear necessary to justice, and a fair trial; that, but for this agreement, Alexander might, in 1786, have moved that Herbert should be restored as defendant, shewing that he was deceived into a consent to change him.

*This answers the objection for want of consideration; since, although the promise might not import gain to the promissor, yet if the other was induced by it, to waive any advantage he might have had, it is a good consideration.

3.That the agreement was not unjust or unreasonable. It was Herbert’s title that was to be controverted; and 'the expense should in justice fall upon him. He employs Mr. Randolph to defend the suit, is entered as defendant, and although others were afterwards entered (probably without their consent, for it is proved they complained of it,) yet it appears that he continued to act as the real defendant by paying their costs throughout; although the cause was not tried ’till 1793, seven years after this agreement. Circumstances of important consideration, in this liberal action on the case.

It is asked why the judgment was not entered against the defendant?

I can assign the reason; — It might proceed from inattention ; or from a confidence in the honor of the defendant; which might induce the plaintiff to suppose that it was unnecessary. However, that it was not done, is the breach, which the plaintiff complains of.

The defendant was not present, and no special power appears to have been given to Mr. Randolph to make the agreement: Which comes to the question, whether it is binding on the defendant, as a client, under his general authority?

When a man employs an attorney to defend a suit, he confides to him a power to judge of, and pursue the modes of defence throughout, and is bound by what the attorney does in the progress of that suit, so as it be confined to fair proceedings and not foreign to the defence of the suit; thus the attornies consent, to stand to an arbitration, will bind his client. 1 Bac. ab. (new edit.) 292.

*To the present point, a case is there cited, from Salk. 86, which seems to apply.

In that case, the attorney agreed to waive a judgment obtained by his client, for want of the defendants joining issue, on a replication to the plea of the statute of limitations, and to accept the issue. On a motion to compel him to accept it, it was opposed, because the plea was a hard one, and the client having notice of the advantage, ordered the attorney to insist upon it. The court said as it was a hard plea, they would not have compelled him, if he had not consented to waive the advantage; but now they would hold him to his consent: And as for the client, he was bound by the consent of his attorney, and they could take no notice of him.

Here the attorney waived, in effect, the change of others as defendants, and agreed to restore Herbert his only client, and the real person interested, to his original liability.

All which was fair; and within h'is power, as attorney. Therefore I think the judgment should be affirmed. But as a majority of the court are of a different opinion, it must be reversed with costs.

The judgment was as follows:

“The court is of opinion, that the said judgment is erroneous in this, that the said court misdirected the jury, respecting the writing in the bill of exceptions stated to have been signed by Edmund Randolph: Therefore it is considered that the same be reversed &c. And it is ordered, that the jurors verdict be set aside, and that a new trial be had in the cause.”  