Gaillard v. Smart , 6 Cow. 385 ( 1826 )

Curia, per

Savage, Ch. J.

It is worthy of remark, that only one of the plaintiffs makes an affidavit, denying any special authority in their attorneys to discontinue ; and if this were the question, I think we ought at least to intend, that the attorney would not act without such an authority, till the contrary is clearly shown by both.

But I do not think a special authority was necessary. Denton v. Noyes is relied on ; but, as I understand that case, it is an authority in favor of the right to discontinue under the general power of the attorney. It was there held, that a judgment confessed by an attorney of this court, without process, was regular ; and the court said the defendant must look to the attorney for his damages, if he had sustained any. It is true, this being such a strong act of the attorney, the court allowed the party to come in and plead ; the judgment standing as security. They cite various cases, shewing that, usually, if the client is prejudiced by the misconduct of his attorney in the course of the suit, he must take his remedy against the attorney. Van Ness, J. who dissented, conceded that if a suit had been regularly- commenced, the confession would have been conclusive, unless the attorney had been insolvent. Taking the rule as laid down by him, which is certainly the most favorable to the plaintiffs; and still we must hold the discontinuance regular, if it had been actually entered. What has been done, is clear* ly equivalent to an actual discontinuance. The defendant’s attorneys requested a rule to be entered; but the formality was waived. This is not the case of an agreement within the rule which requires a writing between the attorneys. Where an attorney is retained, we will not look for a special authority to do so ordinary an act of practice as the discontinuance of the cause. True, his general power does not extend to a retraxit or release; because they relate to the cause of action itself; not merely to the remedy which he is retained to conduct. But he may do all ordinary acts in the prosecution of the suit; or the final disposition of it.

Besides, here were instructions given to the attorney to suspend the suit. This is admitted by the plaintiffs. If these instructions have been misconstrued by the attorneys, it is better that their clients should suffer, than the opposite party.

On the whole, we think a rule to discontinue must be granted ; and this precludes the question as to the exon-eretur. The bail are relieved as a consequence.

Rule to discontinue granted.