Seymour D. (Seymour Dwight) Thompson.

A treatise on the law of trials in actions civil and criminal (Volume 1) online

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in which the suit is pending." ^

§ 191. [Continued.] What lie may do. — He may agree to
submit the matter in controversy to arbitration ; ^ or not to take

does violate instructions, unless the
violation is known to the adverse par-
ty, — the reason being that the attor-
ney, within tlie scope of his retainer,
is the general agent of his client.
Swinfen v. Swinfen, 18 C. B. 485;
Swinfen v. Chelmsford, 5 Hurl. & N.
890; Chambers v. Mason, 5 C. B. (n.
s.) 59; Chown v. Parrott, 14 C. B. (n.
s.) 74 ; Prestwitch v. Poley, 18 C. B.
(N. s.) 80G; Fray v. Voules, 1 El. & El.
839; Butler v. Knight, L. E. 2 Exch.
109. A few American courts have fol-
lowed the same rule. Wieland v.
White, 109 Mass. 392; Potter v. Par-
sons, 14 Iowa, 286; Holmes v. Kogers,
13 Cal. 191 (overruled it seems, by
Preston v. Hill, 50 Cal. 43 and Am-
brose V. McDonald, 53 Cal. 28).
And American courts generally show
a leaning in favor of such com-
promises, when fairly made, and up-
hold them if they seem advantageous
to the party complaining. Holker v.
Parker, 7 Crauch (U. S.), 436, 452;
Whipple V. Whitman, 13 R. I. 512.
See also Rollers. Wooldridge, 46 Tex.
485; Potter v. Parsons, 14 la. 286;
Bank of Georgetown v. Geary, 5 Pet.
(U. S.) 99; Black v. Rogers, 75 Mo.
441; Williams v. Nolan, 58 Tex. 708;
Bonny v. Morrill, 57 Me. 374 ; Jones v.
Williamson, 5 Coldw. (Tenn.) 371;
Union Mutual Life Ins. Co. v.

Buchanan, 100 Ind. 63; Albee v. Hay-
den, 25 Minn. 267. Nor has he gener-
ally authority to release a sux'ety.
Stowe V. Sheldon, 13 Neb. 207.

1 Greenlee v. McDowell, 4 Ired. Eg.
(N. C.) 485; Branch v. Walker, 92 N.
C. 89; Moulton v. Bowker, 115 Mass.
36; Williamson-Stewart Paper Co. v.
Bosbyshell, 14 Mo. App. 534, 538;
Levy V. Brown, 56 Miss. 83; Annelly v,
Saussure, 12 S. C. 488; Read v.
French, 28 N. Y. 293; Nightingale v.
Oregon &c. R. Co., 2 Sawy. (U. S.)
338. See also Schoregge v. Gordon,
29 Minn. 367; Clark v. Randall, 9 Wis.
135; Nelson v. Cook, 19 111. 440; Gor-
ham V. Gale, 7 Cow. (N. Y.) 739 ; Union
Bank v. Geary, 5 Pet. (U. S.) 99;
Newberry v. Lee, 3 Hill (N. Y.), 526;
Oestrich v. Gilbert, 9 Hun (N. Y.),
242; Jennie v. Delesdernier, 20 Me.
183; Week's Att., §218; Whart. Ag.,
§ 585 et seq. He cannot stipulate that
a sheriff shall conduct a business on
which he has levied. Alexander v.
Denaveaux, 53 Cal. 663; s. c. 59 CaL

2 Beck V. Bellamy, 93 N. C. 129.

3 2 Greenl. Ev., § 141; Smith v.
Bossard, 2 McCord Ch. (S. C.) 409.

4 Sargeant v. Clark, 108 Pa. St. 688;
Bingham v. Guthrie, 19 Pa. St. 418;
Tilton V. United States Life Ins. Co.,
8 Daly (N. Y.), 84; Somers v. Bala-


an appeal or ivrit of error; ^ or may agree that the opposite party
may take judgment,^ and this, too, although he may know that
his client has a good defense to the action.^ So, where he rep-
resents the plaintiff, he may, without the consent of his client,
dismiss the action,* or restore it after a dismissal or nolle pros., ^
or bring a new action;^ and he may take an appeal, and, ac-
cording to one opinion, bind his client by a recognizance in the
name of the latter for the prosecution of it.^ So, he may have
printed, at the charge of his client, such briefs or arguments as
he may judge advisable for the more convenient presentation of
the cause in an appellate court. ^ In all these cases if, in the
absence of collusion with the opposite party, he acts contrary to
the express directions of his client, or to his injury, the client
must look to the attorney, and not to the opposite party, for re-

§192. [Continued] AVhat he may not do. — But there is
even here a line which he cannot overstep. He cannot, by virtue
of his general authority, accept service for his client of the orig-
inal process by which the action is begun; ^ nor, under the old
law excluding interested witnesses, could he release a claim of his
client against a witness, in order to render the latter competent

brega, 1 Dall. (U. S.) IGl; Holker v. attorney has taken place in the mean-
Parker, 7 Crauch (U. S.), 436; Buck- time. Barlow v. Steel, 65 Mo. 611,
land V. Conway, 16 Mass. 396. Com- 618.
pare Conuett v. Chicago, 114 111. 233. * McLeran v. McNamara, 55 Cal.

1 Shisler v. Keavy, 75 Pa. St. 79. 508; Gaillard v. Smart, 6 Cow. (N. Y.)

2 Hudson V. Allison, 54 lud. 215. 385.

Compare Pike v. Emerson, 5 N. H. ^ Reinhold v. Alberti, 1 Binu. (Pa.)

393; Talbott v. McGee, 4 T. B. Mon. 469.

(Ky.) 377; Union Bank v. Geary, 5 6 Scott r. Elraendorf, 12 Johns. (N.

Pet. (U. S.) 99. Y.) 31.-).

3 Thompson •;;. Pershing, 86 Ind. ' Adams v. Robinson, 1 Pick.
304, 310. So, an attorney has author- (Mass.) 462.

ity, in virtue of his general retainer, ^ Williamson-Stewart Paper Co. v.

to bind his client by a stipulation to Bosbyshell, 14 Mo. App. 534; Weisse

take a judgment on a verdict ah'cady v. City, IC La. Ann. 46.

rendered, and such a stipulation does ^ Bayley v. Buckland, 1 Esch. 1 ;

not lose its force by the lapse of over Mastei'son v. Le Claire, 4 Minn. 163;

ten years before judgment is entered, Anderson v. Hall, 87 N. C. 381.

if no revocation of the authority of the



to testify;^ nor release siireties; ^ nor execute a replevin bond for
his client; '^ nor enter a retraxit ; * nor, according to one doubtful
opinion, stipulate loJiat laio shall govern the case, — as that a
particular statute was or was not duly enacted ; ^ nor assign the
judgment when recovered ; ^ nor release or postpone the lien
thereof ; ^ nor act for the legal representatives of his deceased

§ 193. Binding Nature of his Stipulations. — Such being
the extensive nature of his powers in the conduct of the litiga-
tion, it follows that his stipulations, made in open court with the
opposite counsel, have in general the force of contracts, the per-
formance of which the court will enforce.^ Some decisions add,
as a condition of the binding character of a stipulation, that it be
also entered of record.^^ But, on principle, it would seem suffi-
cient, to give the stipulation or promise, made in facie curiae, the
binding nature of a contract, that the other party has acted upon
it. This conclusion is supported upon the familiar principle of
an estoppel in pais, which is that when a party, by his declaration
or conduct, has induced another to act in a particular manner

1 Shores v. Casswell, 13 Mete.
(Mass.) 413. See also Marshall v.
Nagel, 1 Bail. (S. C.) 308.

2 Giveus V. Briscoe, 3 J. J. Marsh.
(Ky.) 532.

3 Proprietors v. Wentworth, 3G Me.
339. But aliter as to an indemnifying
bond to a sheriff, in the name of his
principal. Ford i-. Williams, 13 N. Y.

^ Lambert v. Sanford, 2 Blackf.
(Ind.) 137.

5 Graves v. Alsap, 1 Ariz. Ter. 274.

6 Wilson V. Wadleigh, 36 Me. 496.

7 Wilson V. Jennings, 3 Oh. St. 528.
See also Doub v. Barnes, 1 Md. Ch.

8 Campbell v. Kincaid, 3 T. B-
Mon. (Kj'.) 560; Wood v. Hopkins, 3
N. J. 507.

9 Banks v. American Tract Society,
4 Sandf. Ch. (N. Y.) 438; Staples v.

Parker, 41 Barb. (N. Y.) 648. It is
said to have always been the practice
in New York "to hold the parties
strictly to their engagements made
during the trial and in the face of the
court, relating to the conduct of the
suit, and its proceedings." Staples v.
Parker, supra.

io Caldwell v. Mc Williams, 65 Ga.
99. Under the statute of Minnesota,
whicli declares that the authority of
an attorney to bind his client shall ex-
tend to " any of the proceedings in an
action or special proceeding, duly
made, or entered upon the minutes of
the court," it has been held that a
stipulation touching the conduct of a
cause, so made and entered, is in the
nature of a contract, which the court
cannot set aside at the instance of one
of the parties. Bingham v. Super-
visors, 6 Minn. 13"


which he would not otherwise have done, such party will not
afterwards be permitted to set up a claim inconsistent with such
declaration and conduct, if such claim will work an injury to the
other party or to those claiming under him.^ Sometimes the
qualification is added that the agreement he fair and reasonable.
Thus, it is said in Tennessee by the court, speaking through
Reese, J. : " The power of the court, as well as the duty, to en-
force fair and reasonable agreements relatino- to the conduct and
dispatch of business before it, is necessarily incident to the
nature of its position and required to insure the orderly and
faithful determination of causes. It is a power which this court
has repeatedly exercised upon deliberation and examination of
authorities, and very recently in a highly important case." "^

§ 194. Setting aside and relieving against such Stipula-
tions. — Such being the nature of the stipulations of counsel
made in court touching the cause of the trial, it follows that they
will not be set aside upon any lower grounds than those which
would warrant the rescission of a contract, ■ — namely, fraud, collu-
sion, accident, surprise, or some ground of the same nature.^
The court will not relieve parties from the effects of a stipulation
made under a full understandino; of the facts existing at the time.*
The mere fact that a party, by such a stipulation, has waived de-
fenses which he might otherwise urge, is no sufficient ground for
setting it aside. ^ But, by analogy to the relief of parties from
contracts entered into under a mutual mistake of fact ^ it is clear
that a court will relieve a party against a stipulation made under
such a mistake.^ It has been held that an order settins: aside a
stipulation of counsel touching the conduct of a case, is appeal-
able.'' But this, under most systems, would obviously depend

1 Banks v. American Tract Society, ^ Bingham v. Supervisors, supra.

4 Saudf. Ch. (X. Y.) 438, 4(;7. 6 W'ells v. American Express Co.,

2 Jones V. Kimbro, 6 Humph. 49 Wis. 224. In this case the mistake
(Tenu.) 319. does not appear to have been mutual

3 Bingham v. Supervisors, 6 Minn. and yet the stipulation was set aside.
136; Keogh v. Main, 52 N. Y. Super. ' Bingham v. Supervisors, 6 Miim.
100. 13(3.

* Conner v. Belden, 8 Daly (N. Y.),


upon the nature of the order ; it would not be appealable unless
it were in the nature of a final judgment dispositive of a sub-
stantial right.

§ 195. [Illustration.] Agreement that Several Causes shall
ABIDE the Event of one. — Where several cases are pending in court,
depending upon the same facts or questions of law, it is compe-
tent for the attorneys, in virtue of their general retainers, to stipulate
that only one shall be tried and that the others shall abide the result of
that one.i Such a stipulation is not merely an independent executory
agreement, but it operates presently to affect the status of the case itself,
and invests the plaintiff with rights in respect to its conduct, which he
otherwise would not have had, and of which neither the opposite party
nor the court can lawfully divest him. When, therefore, one suit was
selected from among a number which were founded upon the same
cause of action, and a stipulation made that all the causes then pending
on appeal from a justice should abide the final determination of this
case, — the defendant thereafter had no right to dismiss his appeal in
the case in which the stipulation was entered of record. ^

§ 19G. [Further Illustrations.] That the Opposite Partt
MAY take Judgment. — The foregoing principle no doubt extends so
as to give binding force to a stipulation that one of the parties to the
suit may take judgment, since it is competent for counsel to make such
an agreement."^ Under a statute providing that parties may agree to a
judgment by loriting filed in open court, it is held that an agreement be-
tween the parties to an action, stipulating the terms upon which a de-
cree shall be entered, when filed in open court, becomes a part of the
record, and is in effect an answer or pleading, and, unless for good cause
shown, should be so regarded by the court, and cannot hence be stricken
from the files or withdrawn upon the motion of the parties ; and accord-

1 North Missouri R. Co. v. Ste- 377 ; Union Bank v. Geary, 5 Pet. (U.

phens, 36 Mo. 150. As to the effect of 8.) 99; 2 Greeul. Ev. §14:1. It has

a stipulation tliat one cause shall been lield that a party who obtains a

abide the result of another, see Gil- juiipnent in violation of his written

more v. American Central Ins. Co., 07 stipulation on file, dismissing the ac-

Cal. 366. tion, — may be restrained or enjoined

^ McKinley v. "Wilmington Star from enforcing it by the court in which

Mining Co., 7 Bradw. (111.) 386. it was obtained. McLeran v. McNa-

3 Pike ri. Emerson, 5 N. H. 393; mara, 55 Cal. 508.
Talbott V. McGee, i T. B. Mou. (Ky.)


ingly, that a subsequent pleading, filed by one of the parties, inconsist-
ent therewith, should be stricken from the files. ^

§ 197. [Further Illustrations.] Admissions in the Pleadings. —
The pleadings are drawn by the attornej's of the parties, except in
those few cases where parties are foolish enough to endeavor to act as
their own attorneys ; and no better illustration of the principle under
discussion could be furnished than is found in the binding nature of
the admissions in the pleadings. Such admissions are evidentiary in
their character, are an absolute estoppel upon the party making them,
unless he seasonably withdraws them by amendment, and obviates the
necessity of the other part3' proving the facts thus admitted. Much
could be written upon this subject. There are implied admissions as
well as express admissions. It has been held that, where an answer
sets up several distinct defenses,. a denial in one is qualified by an ad-
mission in another, — which is merely an apj^lication of the rule that a
party's pleading, like any other written instrument, is to be construed
as a whole, and in case of any incongruities or contradictions, is to be
taken most strongly against the pleader. If, therefore, a party in one
count of an answer denies a fact alleged in the petition or complaint,
and in another count admits it, the admission, and not the denial, will
be taken to be true. It will estop him, and the plaintiff will not be
bound to prove the fact thus admitted. For instance, where the action
was replevin for unlawfully taking the plaintiff 's goods, and the
answer contained two defenses: (1) a general denial of the allegations
of the complaint, and (2) a justification of the taking under a levy
upon execution, — it was held that the answer admitted the taking for
the purposes of the trial, and that to that extent the second defense
vacated the first. ^ In another case, the same court, applying the same
principle, held that a general denial in one count of the answer was in-
consistent with special matter alleged in another count, and was to be
construed as modified b}^ the latter.^ This principle has been applied
by the Supreme Court of the United States in a case originating in the
Circuit Court of the United States for the District of Minnesota, — the
court holding that the admission of the plaintiff 's title contained in an
equitable defense set up in the third count of the answer, overrode and
controlled a denial of the plaintiff's title in the first count, and was
conclusive upon the question of title. ^

1 Vail V. Stone, 13 Iowa, 2S4. * Northern Pacific R. Co. v. Paine,

2 Derby v. Gallup, 5 Minn. 119. 7 Sup. Ct. Kep. 323, 325.

3 Scott V. Kiug, 7 Miuu. 494. See
aisoZiraraermau v. Lamb, 7 Minn. 421.


§ 198. Admissions and Agreements of State's Attorney. —

Admissions made by the State's attorney of facts for the pur-
pose of the trial are to be considered, for all the purposes to
which they are relevant, in precisely the same light as if they had
been proved by testimony instead of admitted. ^ Where the
State's attorney is not in a condition to go to trial or to demand
the forfeiture of a recognizance, he may lawfully agree in con-
sideration of a consent to th.e forfeiture , that it shall be set aside
on the appearance of the defendant at the next term.^

§ 199. Stipulation cannot confer Jurisdiction. — An ex-
ception to the rule touching the binding force of stipulations of
counsel as to the conduct of a cause is founded in the principle
that consent cannot confer jurisdiction over the subject matter of
a litigation: a stipulation giving the court jurisdiction which it
does not possess is invalid.^

§ 200. Verbal Stipulations, How far Binding". — Subject to
the statute of frauds, verbal promises, whether made in or out
of court, if acted upon by the other party, are binding as con-
tracts, at least by way of estoppel, on a principle already sug-
gested.* Acting upon this principle, one court has ruled that
although there may be a rule of court intended to prevent dis-
putes and uncertainties, requiring stipulations of counsel touching
the conduct of causes to be put in writing, yet where such an
agreement has been orally made between counsel, and the sub-
stance of it is admitted, the court will not allow one of the coun-
sel to disregard it, after it has been acted upon by the other.
*« We think it well established by the authorities," said Paine, J.,
" that, although the rule requires stipulations to be in writing in
order to be binding, yet it was not designed to allow a party who
had entered into a verbal stipulation, upon which his adversary
had relied and acted, to obtain an unjust advantage, and destroy

1 People V. Tyler, 3*5 Cal. 522, 531. ^ Bingham v. Supervisors, 6 Minn.

2 Esmond?;. People, ISBradw. (111.) 13G, U7.

114. ■» Ante, § 193.


the other's rights by disregarding it himself.^ Another court
has ruled, proceeding upon the necessity of avoiding disputes
between counsel, that verbal stipulations with reference to pro-
ceedings pending an action cannot be regarded, except so far as
they are admitted by the parties against whom they are sought
to be enforced. 2 For stronger reasons, a verbal stipulation not
entered of record will not be enforced after a Ions: and un-
explained delay, as for instance, a stipulation that a default may
be set aside wiiere a delay of seven years has intervened before
making the application to the court to enforce the same.^ Stat-
utes exist in some States like the following: " An attorney and
counsellor has authority to bind his client in any of the steps of
an action or proceeding, by his agreement filed with the clerk or
entered upon the minutes of the court, and not otherwise."*
Such statutes are regarded as in the nature of a statute of frauds.^
Under them an attorney cannot bind his client, by a verbal stip-
ulation, made during the progress of a trial and not entered on
the minutes, to waive the rights of his client under an issue made
by the pleadings, — as, for instance, that the judgment of the
plaintiff, if he recover, shall be for payment in gold coin; ^ or
even extending the time for filing a bill of exceptions.^

§ 201. Solemnity and Formality Required in Admissions of
Counsel. — In order that admissions of counsel of facts may take
the place of evidence in a civil trial, such admissions " must be
distinct and formal, or such as are termed solemn admissions,
made for the express purpose of alleviating the stringency of
some rule of practice, or of dispensing with the formal proof of

1 Buruham v. Smith, 11 "Wis. 258. ^ Borkheim v. Insurance Co., 38
Tlie court cite Gaillard v. Stuart, <! Cow. Cal. (J23, (_;28.

(N. y.)3S5; Ex parte Lassell, 8 Cow. ^ Merritt v. Wilcox, 52 Cal. 238.

(N. Y.) 119; Montgomery u. Ellis, 6 Under a substantially similar statute

How. Pr. (N. Y.) 32(J; Wager v. the same rule exists in Indiana.

Stickle, 3 Paige (N. Y.), 407; Turner Louisville &c. R. Co. v. Boland, 70

17. Burrows, 1 Hill (N. Y.), 627. Ind. 595.

2 Patterson v. Ely, 19 Cal. 35; ' Goben v. Goldsb^rry, 72 Ind. 44
Reese v. Mahony, 21 Cal. 305, 308. (distinguishing Ridgway v. Morrison,

' Reese v. Muhony, supra. 28 Ind. 201).

< Cal. Code Civ. Proc, § 283.


some fact at the trial." ^ The remark's of counsel during the
progress of a trial are not to be regarded as adirissions by which
the rights of the client are to be determined. ^ It has even been
held that counsel who, when evidence is offered, make declara-
tions that it is offered iov delimited jnirpose only, are not estopped,
after it is received, from drawing from it deductions other than
those contained in the offer, unless injustice will be done to the
opposite party by permitting such new deductions. Coun-
sel, it is reasoned, have no power to limit the effect of evidence,
but its effect is regulated by the court in its charge to the jury.
The statement by counsel of the purpose for which evidence is
offered is only a reason given wdiy the evidence should be re-
ceived.^ But i\\Q failure to object to evidence in the course of the
trial will, in many cases, have the effect of an admission of cer-
tain facts which flow as a natural consequence from acts done or
evidence admitted. Thus, in a suit upon notes where certain
notes are offered in evidence without objection, this, it has been
held, is equivalent to a tacit admission that they were the notes
in suit. "If they were not," said the court, " by timely ob-
jection, by pointing out any substantial difference between the
notes sued on and those offered, he (defendant) could very
easily have prevented their introduction in evidence." *

§ 202. Interpretation of Various Stipulations and Agree-
ments. — A stipulation which on its face purports to be '•'•^statement
of the facts in this action " does not, unless its terms so import, pre-
clude the parties from introducing other evidence on the trial. ^

An agreement to supply lost papers or dismiss cause at the next term,
is construed to mean at that period of the term when the cause is

reached for trial on the docket in regnlar course of business.^

An agreement to submit a case on briefs to be decided in vacation, the
order and decree to be entered as of that or the next term, is con-

1 1 Greenl. Ev., § 180; Ferson v. ^ Sill v. Reese, 47 Cal. 294.
Wilcox, 19 Miun. 449, 451. See also ^ Fitzgerald ??. Barker, 85 Mo. 13, 20.
Geu. Stat. Minu., chap. 88, § 8. s Dillou v. Cockcroft, 90 N. Y. 049.

2 McKeeu v. Gammon, 33 Me. 187. ^ Jones v. Kimbrough, 3 Humph,
See for illustration, Stewart v. Shaw, (Tenu.) 319.

55 Mich. G13.


strued as a submission of the whole controversy, and not as merely

the submission of a motion to disallow an injunction.^ Where

the parties, upon the evidence as it stands at a given stage of the trial,
stipulate that the jury may he discharged and the cause submitted to
the court alone, if one of them is thereafter, against the objection of
the other, permitted to introduce further evidence, and if the cause is
decided by the court with reference to such further evidence, without
any waiver by the other party of his right to a jury trial thereupon,
it will be error.- Where the defendant moved for a continu-
ance to enable him to discredit the testimony of the plaintiff, in case
she should be called as a witness in her own behalf ; and thereupon her
counsel, in order to avoid a continuance, announced that she should
not be called, whereupon the court said that, upon that agreement, the
continuance would be refused, — it was held that this circumstance
did not preclude the counsel of the defendant from commenting in his

argument upon the failure to call her as a witness.^ A stipulation

that a stenographer's notes of testimony taken on a trial of another
cause may be used as evidence, subject to objections for immateriality,
irrelevancy, or other matter of substance, is a waiver of the right to
object that the witnesses were incompetent, or that the parties or is-
sues were different than on the former trial. ^ An agreement

to amend the issue and try the case on the merits has the effect
merely of waiving exceptions to the matter of form, and does not, in
any other respect, affect the legal rights of the parties.^ A stipu-
lation that the jury, if the court be not in session when they agree upon

Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 1) → online text (page 56 of 145)