Shores v. Caswell

Shaw, C. J.

This was an attempt to carry the authority of an attorney beyond its just limits. We speak of the authority of an attorney, arising from his relation, as such, without other powers expressly conferred. Undoubtedly an attorney, retained to prosecute or defend a suit, has authority, as "ncidental to his retainer, to take all legal steps, and do every legal act, in behalf of his client, to the legal end and determination of such suit. He may appeal; Adams v. Robinson, 1 Pick. 461; or refer a case to arbitrators; Buckland v. Conway, 16 Mass. 396. He may receive livery of seizin; Pratt v. Putnam, 13 Mass. 361; and he may sue out a writ of scire facias against bail; Dearborn v. Dearborn, 15 Mass. 316 ; or a writ of error; Grosvenor v. Danforth, 16 Mass. 74. All these, however, are powers incidental to the conduct and prosecution of a suit or defence to its legitimate result. But the attorney can no further deal with the rights of his client, when legally established, without special authority. He may collect an execution, if his authority in that respect is not revoked, because it is incident to his authority; but he cannot release it without payment, nor take part for the whole. Lewis v. Gamage, 1 Pick. 347.

Here, the attorney, in prosecuting this suit, had occasion for the testimony of a witness who could be made competent by a release of another cause of action; and he, by virtue of his office, without authority, executed such a release. This was dealing with another and independent right of his client, not committed to his charge, and not incident to his retainer. Marshall v. Nagel, 1 Bailey, 308. It might be that the cause of action released was of much more value than the cause of action in question in this suit; and it was for the client, and not for the attorney, to judge of that, and determiné whether to execute the release or not.

Verdict set aside, and a new trial ordered.