I think there can be no doubt, that an attorney has authority to bind his client by an agreement to refer an action. Pike v. Emerson, 5 N.H. 393. It was, therefore, of no consequence whether the selectmen had authority to refer the action or not. It is enough that the attorney was satisfied, by the representations of the *Page 561 chairman of the board of selectmen, that the town would acquiesce, and thereupon signed the agreement as attorney. It is of no consequence that the selectmen directed it, because, as the attorney of the town, he should not have undertaken to act as the attorney of the selectmen. I think, therefore, it must be held that in signing that agreement he assumed the responsibility, and that the town is bound thereby. The evidence, therefore, if admitted, would be of no consequence.
SMITH, J. The agreement which the defendants seek to evade purports to have been entered into in court at the February term, 1875, and thus has become a part of the record in this suit, or, as expressed in Alton v. Gilmanton, 2 N.H. 520, "a portion of the materials from which the record is to be made up." In that case, WOODBURY, J., said, — "We will not suffer counsel, nor their clients, to depart from it, unless on evidence to us that the agreement was made by mistake, fraud, or surprise." As nothing of that kind is pretended here, no reason appears why this agreement should not be enforced. That counsel for the town had authority to make it, by virtue of his general retainer, does not admit of doubt. An attorney may waive objections to notice service, and to the form of the writ — Alton v. Gilmanton, supra; he may waive the right of appeal — Pike v. Emerson,5 N.H. 393; he may enter into agreements which will be held conclusive evidence of the facts agreed to — Alton v. Gilmanton, supra, Burbank v. Insurance Co. 24 N.H. 552, Goodrich v. Eastern Railroad, 38 N.H. 390, Page v. Brewsters, 54 N.H. 184, 1 Gr. Ev., secs. 27, 186; he may take an appeal from the probate court, — Spaulding's Appeal, 33 N.H. 479, — and may waive statutory prerequisites to an appeal — Hanson v. Hoitt, 14 N.H. 56; and, generally, he may make any admissions of fact or disposition of the suit which his client could make — 1 Salk. 86, Tidd 34; and his agreement to refer a cause is binding upon his client — Pike v. Emerson, supra. For any misconduct, his client has a legal remedy against him — Bunton v. Lyford,37 N.H. 512, Smyth v. Balch, 40 N.H. 363.
Exceptions overruled.