
    *Rebecca Smith, Administratrix of Samuel Smith v. Joseph S. Bossard, Executor of John Bossard, Executor of Benjamin Screven and Others.
    A solicitor may refer matters of account to special accountants. If he exceeds Ms power, it seems a bill of review will lie. The appointment of an attorney to prosecute or defend a case, confers on him all the powers necessary to the forms and usages of the court in which it is depending'. And it is the practice of the courts of equity to refer matters of accounts to special commissioners, assistant commissioners, accountants, &c. The consent to such a reference by a solicitor is binding on his client. It seems, if a solicitor compromits the rights of his client by any unauthorized act, it will constitute a sufficient ground for a bill of review.
    The defendant filed her hill against John Magrant, the surviving executor of Benjamin Screven, Jun. and against William Lester and Mary E. Inglesby administrator and administratrix of John Screven and Joseph S. Bossard executor of John Bossard, the said John Scre-ven and John Bossard having also been executors of the said Benjamin Screven, Jun. The object of this bill was to have an account and settlement of the accounts of Samuel Smith the intestate with the estate of Benjamin Screven, Sen. of which the said Samuel Smith was the executor. These accounts were referred to the commissioner of the court, who, in January, 1824, reported a balance against the defendants of £-. In this account the commissioner amongst other things refused to allow the defendants a credit for the commissions to which Samuel Smith would have been entitled as executor, because as was stated in the report, he did not appear to have made his regular annual returns to the ordinary’s office.
    
      On the coming in of this report exceptions were filed on the part of the present defendants; hut before they came on to be argued before the court, the following order was made, viz : “The commissioner’s report, and the exceptions thereto being presented to the court, it is ordered by the consent of all parties, that the said report and exceptions be referred to three accountants to examine and report thereon to the next sitting of this court; one of the said accountants to be nominated by the complainants, one by the defendants, and the third *by the commissioner. Under this order Peter Cuttino, A. Marvin and John Taylor were nominated, and at - term they reported, that having taken upon themselves the consideration and adjustment of the report and exceptions mentioned in the foregoing order, “and having heard and duly considered the allegations, vouchers and exceptions, did thereby award, adjudge and declare respecting the same as follows,” &c., and in conclusion reported a balance of about £640, besides interest, due to the present defendants, in which was included one item of £459 18s. the commissions of Samuel Smith on the estate of Benjamin Screven, Sen. at two and a half per cent., but without interest.
    On the coming in of this report it was confirmed without opposition, and with the consent of Mr. Carr, the defendant’s solicitor, and in effect obtained the force of a decree under which a writ of fi. fa. issued, on which the complainants, William Lester and Mary E. In-glesby, paid to the sheriff of Georgetown district, one third part of the whole amount, being the amount supposed by them to be due on this account from the estate of their testator, John Screven.
    The present was a bill to restrain the sheriff from paying over the money so received to the defendant, and for a review of the decree founded on the report of the accountants. There were two grounds relied on for a bill of review, but the only ground decided on by the court was, that the order of reference to the accountants was made by the complainants’ solicitor without their knowledge, consent, or approbation, which they contended was not within the scope of his general powers, and therefore not obligatory on them.
    The bill was filed under the order of Chancellor DeSaussure, who at the same time, made an order directing the sheriff to retain the
    money received until the further order of the court, and this was a motion to set *aside these orders and to dismiss the complainants’ bill on the ground that the reference of the report of the commissioner, and the exceptions to persons denominated accountants, was within the general powers of the complainants’solicitor and obligatory on them.
    Dunkin and Gadsden, for the appellants.
    Wilson and King, contra.
    March, 1827.
   Curia, per

Johnson, J.

The ground for a review

places the reference made under the court to the accountants on the footing of a reference to arbitration by the solicitor without the consent of his clients, and the case of Caldwell v. Child, 1 Rep. in Chan. 104. 1 Ca. Chan. 86, is relied on as decisive of the question. And it would seem that the reporter does put the decision in that case on the ground of the want of authority in the attorney to consent to a reference to arbitration without the consent of his client. My confidence in that decision is, however, much shaken by the review of it by Mr. Kyd in his treatise on Awards, p. 45, 6. He shows, I think, very clearly, that the judgment of the court was sustained on quite a different ground. There the order was, that the submission should be made by bond, and he shows that the attorney was incompetent to bind his client in that way, and therefore the award was void, so that the question was not necessarily involved.

But this case is free from any of the difficulties and perplexities that may exist in relation to that question. The constitution of an attorney or solicitor for the prosecution or defence of a suit, confers on him all the powers necessary to the discharge of that duty according to the forms and usages of the court in which it is depending. Kyd on Awards, 45. 1 Dali. 164. 7 Cranch, 446. And all the profess’on accord that the ^practice to refer matters of account, particularly to persons other than the commissioner of the court, has prevailed since the first organization of the court, under the vari-

ous appellations of special commissioners, assistant commissioners, accountants, &c. And if the order of reference in this cause be examined it will be seen that it is a misnomer to call it a reference to arbitration. The report of the commissioner and the exceptions thereto are referred to them, and they are directed to report thereon to the court, and not to make an award ; and it is also apparent that it was not intended, so far as the intention is to be collected from the order itself, to deprive the court of the power of controlling their report in the same manner that they might the report of the commissioner. At any rate there is nothing in it, either expressed or necessarily implied from the terms of the order, which takes away that power; nor can the circumstance that the accountants have used the term “award” in their report add anything to their own powers or detract from the power of the court. The consent of the solicitor to such a reference, was, therefore, within his general powers, as was also his assent to the confirmation of the report, and is obligatory on his clients. There is no doubt to my mind, that if the complainants’ position, that their solicitor had compromittad their interest by an act unauthorized by them, and not falling within the scope of his general powers, had been maintained, it would have constituted a sufficient ground to authorize a bill of review; but the case does not in point of fact exist. It is, therefore, ordered that the complainant’s bill be dismissed with costs; and that the order directing the sheriff to retain in his hands the amount paid by William Lester and Mary E. Inglesby on account of their testator John Screven, be reversed.

Decree reversed.  