The Dorset County Express and Agricultural Gazette.
Dorchester, Dorset, England, 1859-11-15 00:00:00

Ina'.

COURT OF EXCHEQUER, Nov. 8.

(Sittings in Banco, before the LORD CHIRP BARON, Mr.
Baron thttIIWKLL, Mr. Baron WATBON, and Mr.
Baron CHANNELI..)

BWINFIN r. LORD CHRLMRFORD.

charge
du

This case was tried before the Lord Chief Baron at the
sittings after last Tenn in London, when the jury found
a verdict for the defendant. The action was brought
against the defendant for having, as the declaration
alleged, wrongfully and fraudulently entered into a com-
promise with the opposite counsel in "'Whiten v.
Swinfen."
Mr. Kennedy commenced moving for a rule in this
case a few days ago upon three grounds,—via, /S.
direction of the learned Judge at the trial, that the
verdict was against evidence, and also upon the non-
reception of evidence,—wben, at the suggestion of the
Court, and with the consent of the learned counsel, the
motion was adjourned till to-day.
Mr. Kennedy, having given • short history of the
case in all its various stages and proceedings, and on
remarking upon the defendant's evidence at the trial,
said,—When I cross-examined him he admitted that
what the Judge had said made a great impression on his '
mind, and it was clear that be did not entertain the
opinion that Sir Alexander Cockburn's cross-examina-
tion had damaged his lady witnesees until it had been
suggested by the Judge, and what I contend is that
making the compromise then was • fraud upon his
client.
Baron Bramwell.—A fraud, Mr. Kennedy!
Kennedy.—Yes, a fraud. It was said the other
day that Sir Cresswell Cresswell was • high-minded and
honourable man, and the last thing he could litve ex-
pected was that the confidence he bad reposed in the
defendant should have been betrayed. There is no
doubt about the betrayal, for the act was instantaneous;
and that, perhaps, is the best excuse that can be made
for the defendant. The impression of the communica-
tion made upon his mind is clear, from the pertinacity
with which he pressed the compromise.
Baron Bramwell.—You say it in a legal fraud, con-
sisting in bond fide conduct,—an expression. I confess,
I never could understand. There is • breach of a duty
cast upon him by law or contract, or the position in
which he finds himself.

Mr. Kennedy.— Yes' that is what I mean.
The Lord Chief Baron.—lt is exceedingly to be re-
gretted that any word in the English language should
mean one thing in a court of justice and another thing
out of it.

Mr. Kennedy.—There is great force in what your
Lordship says,—one is misled by the precedents. The
word "fraud" in a court of justice admits of two inter-

pretations.
Baron Bramwell.—l made the observations to assist
you.
Mr. Kennedy.—Sir Frederick Thesiger was endea-
vouring to obtain for his client a pecuniary advantage.
He might have told his client that the Judge would man
up ageing her, and she was cure to lose. And cup•
pose it was so; it is unconscientious of • council to
avail himself of the information and make a compile
wise. It was morally wrung to do the act, and he did
it beyond all question. I believe his intention was to
benefit his client; it was taking • wrong view, and not
an honest and an upright one, Large words were used
by Sir Fitzroy Kelly about the independence of the bar
and the benefit arising from it; and I go along with
him in • great measure; but that independence is not
secured by giving them an unconditional power over
cases in which they are engaged. The defendant ought
not to have proposed the compromise, and I are glad
that my client was too noble-minded to accept it. The
learned counsel here cited several cases, and after doing
so said, Sir Frederick Thesiger thought she would lose,
and taking a wrong view of I.is own duty, he attempted
to compromise.
The Lord Chief Baron.—l suppose you mean to go
into the question of what is the liability of an advocate
" " _ . . .

_. MrMr liennedy.—Yes 1 shall come to-that presently.
._. . , .

The Lord Chief Baron.—The notion that a physician
or an advocate can go to any length he pleases, however
extreme, and yet be wholly and totally irresponsible for
so doing, cannot be maintained.
Mr. Kennedy.—l shall cite some old cases directly.
The advocate undertakes to do & certain act without
remuneration.
The Lord Chief Baron.—A snrgeon is bound to bring
• certain amount of skill, but I am not aware that an
advocate is bound to be eloquent, learned, or acute, the
qualities supposed to belong to • successful advocate.
Mr. Kennedy.- -Certainly not. Now the learned
Judge said nothing whatever in his summing up of the
error committed by the counsel in acting upon the
remark of the Judge. The Judge ought to give no hint
during the progress of the came of the opinion be bad
formed in his own mind. In the first place, the par-
ticular communication ought not to have been
and secondly, it being • friendly one, Lord Chelindord
ought not to have availed himself of it. He committed
a grave offence in procuring for his client an agreement,
bad in point of law, and which, even if it had been
good, she could not conscientiously have accepted;
when she became aware of it she at once and distinctly

made

-r.p-u-dirteci it.
Moron Bratnwell.—Suppose the other side had mid,
"Enforce your agreeinent,—we are dmious that you
should do so."
Mr. Sennedy.—Then, u an honourable woman she
could not have done so.
Baron Brunwell.—lf the refusal to enforce it was her
own act, how does any damage flow from that?
Mr. Kennedy.—lt was • breach of duty.
The Loid Chief Baron—An action of tort can only be
maintained when there is damage.
Mr. Kennedy.-- I maintain this is tort founded on con-
tract. On the point of damage she bad • right to take
measures to sot the agreement aside whether the heir-at-

law wished to carry it out or not; there is damage, from
the fact that no an honourable woman she is compelled
to set it aside. I contend that a counsel had no right
to make such • compromise as this is. against the wish
of his client. I say "thin is" emphatically, because
many things may fall within the scope of power vested
in counsel that he is justified in using, but even if the
defendant had the oonsent of his attorney in the case it
makes no difference. The learned Judge, in summing
up, seemed to think that a counsel might do anything if
he did it honestly, and if what he did was for the benefit
of his client. The attorney has full power to control the
cause, but his power is suspended during the tium it is
being conducted by counsel, and he takes the respon-
sibility upon himseU, and Can refer it if he thinks fit ;
but the attorney can give the counsel no greater power
than he hinoelf possessed, and the Master of the Rolls
WKS of opinion that the attorney had no power to make
such a compromise as this. A counsel has no power to
consent to compromises that cannot be carried into
effect by the judge or jury. He has charge over the
procedure of the cause, and that only. After reading
Lord Langdale's dictum in " Hargreaves v. Hargreaves,"
Mr. Kennedy went on to say.-1 should also say that
the point in this case is much stronger, because it was
an issue from Chancery.
The Lord Chief Baron.—lt is questionable, if the case
be tried by a special jury, whether the counsel can pray
a tales.
Mr. Kennedy.—That is so unless it is in the order
diluting the issue. It is clear now that a counsel has
no inherent authority, but requires • special one, and,
like everybody else, he only undertakes to do that which
he has power to do. Suppose there has been no special
instructions not to compromise, he knew that Mr.
Simpson, the attorney, had no instructions to go on
with the negociation, and that is what the defendant
tries to throw off his shoulders. If Simpson had set the
thing in motion my client might have sued him. The
counsel says, "ill take the responsibility," and, ac-
cording to the other side my client is without a remedy.
There are many cases in which • client would rather
lose than compromise, and this is one. Her feelings
would not have allowed a compromise. She had been
charged by a Bill in Chancery with fraud and con-
spiracy, supported by affidavits; and she had also been
moss-examined to the effect that she knew the testator
was imbecile.
Baron Bramwell.—l concluded that his Lordship does ,
not leave it to the jury to say whether any authority ,
was given, but what he says is, that upon this declara-
tion, and assuming that no authority was given, was it
dune bead kir?
Mr. Kennedy.—The defendant WAS to support the
affirmative of the issue, and the breach is that he wrong-
fully and fraudulently did so and so.
Baron Channel.—l said at Chambers that you might
reject the word "fraudulently" and strike it out, but
that if you retained it, then you must have COMO mva.
dense to go to the jury upon it.
Baron Bramwell.—But, Mr. Kennedy you left the
word, and the jury found against you. What I under-
stand you to say now is that you do not quarrel with
the finding, but these words in the summing up—if
you believe it was bond fide dooe, then this action is
not maintainable."
Mr. Kennedy.—l told the jury in my speech that if
the word "fraudulently" was rejected, then the cue was
an undefended one. I say now it was • legal fraud. I
shall quote some authorities to show that an action will
lie against counsel, although there have been no pre-
cedents for several hundred years. Mr. Kennedy then
cited,—Rolls Abridg. Tit., Action on Case, Year Books,
14 Henry VI.; Cow. Dig., Bacon's Abridg., Mae. Corn.,
vol, iii., p. 164; "Pell v. Brown," Peake's N. P.
Hints.; "Harris r. Bowser," 2 Veiny, sen., 488;
" Braddish r. Gee," Ambler's Rep., 21W, "Brook r.
Sir H. Montague," Cro. San., 190. I can't fancy why a
Dian should go out of his way to do all the things I
charge against the defendant ; he has very far exceeded
his duty, and is liable accordingly. The principle
of the liability ruts upon the case of "Cages r. Ber-
nard," (Lord Raymond's Reports), which has been fol-
lowed by a string of cases supporting that decision. Mr.
Kennedy was heard at some length upon the docu-
mentary evidence offered at the trial, and ultimately
Their Lordships took time to decide whether they
would grant a rule.