1860. SWINFEN v. LORD action may be maintained, although there be neither malice nor fraud, the plaintiff is not bound to prove either, though both be alleged, and may recover upon the liability which the facts disclose, though fraud and malice be disproved, CHELMSFORD. and we cannot distinguish this from a case where a defendant is charged with doing an act wilfully, being responsible for the act and its consequences, whether done wilfully or not. We should certainly have regretted if so important a case as this undoubtedly is had been decided upon a technical point of pleading. We proceed, therefore, to give the reasons of our judgment, assuming (as the jury have found) that everything done by the defendant was done in honesty and good faith. The complaint in the first count is twofold. First, it is said the defendant consented to a juror being withdrawn, and so prevented the cause from being tried. Secondly, it is alleged that the defendant agreed that the estate in dispute, to which she was asserting her title under the will, should be given up and conveyed to the heir at law. Now, as to the first of these allegations, we are all of opinion that no action lies, taking along with the other facts the verdict of the jury. The conduct and control of the cause are necessarily left to counsel. If a party desires to retain the power of directing counsel how the suit shall be conducted, he must agree with some counsel willing so to bind himself. A counsel is not subject to an action for calling or not calling a particular witness, or for putting or omitting to put a particular question, or for honestly taking a view of the case which may turn out to be quite erroneous. If he were so liable, counsel would perform their duties under the peril of an action by every disappointed and angry client. We think, therefore, that no action lies against the defendant for consenting to withdraw a juror, 1860. SWINFEN v. LORD even though contrary to the client's instructions, provided it be done bonâ fide, as the jury have found it was done. The other complaint made in the first count is, that the CHELMSFORD. defendant agreed, on the plaintiff's behalf, that the estate should be given up and a conveyance of it be executed by the plaintiff. As to this, the plaintiff has always contended that the defendant had no authority or power to make such an agreement, that it was not binding, and that the agreement was a nullity; and we are of opinion, that although a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it—such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as, in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trialwe think he has not, by virtue of his retainer in the suit, any power over matters that are collateral to it. For instance, we think, in an action for a nuisance between the owners of adjoining land, however desirable it may be that litigation should cease by one of the parties purchasing the property of the other, we think the counsel have no authority to agree to such a sale and bind the parties to the suit without their consent, and certainly not contrary to their instructions, and we think such an agreement would be void. With respect to the case before us, we consider that this was the decision of the Master of the Rolls and of the Lords Justices on appeal, and was the opinion of Mr. Justice Crowder when the case was before the Common Pleas. If the act of compromise was a nullity, the rights of the plaintiff remain the same and are uninjured. But then it is said she has been put to expenses, and has incurred costs, in resisting attempts to enforce the agreement of compromise in the Common Pleas and in Chancery. But it is a 1860. SWINFEN v. LORD general rule of law, that to subject a person to law proceedings without malice gives no cause of action. The Courts of equity awarded such costs as the law allows. We think she cannot in this action recover more. (See Doe v. Filliter (a) CHELMSFORD. and the authorities there cited, and Cotterell v. Jones (b).) The Court of Common Pleas thought fit not to give her costs, and we think it must be taken that she was not entitled to them, and cannot claim them in this action. (See Malden v. Fyson (c), and especially that part of the judgment in page 301.) We think the law is as we have stated, and there are other instances in the law which illustrate this. No action lies for a prosecution, however groundless, which has occasioned costs, unless the prosecution was also malicious; nor will any action lie for extra costs, however unfounded a suit may be, and even though it was brought vexatiously. On these grounds then that no action will lie against counsel for any act honestly done in the conduct or management of the cause-including the withdrawing a juror, and that the residue of the complaint is that the defendant did a void act, and exposed the plaintiff to legal proceedings, for which, if done bonâ fide, no action lies against any one, the words "wrongfully" and "fraudulent" in the declaration ought to have been proved, and therefore the direction was right. We have assumed (for the purpose of giving judgment) that no authority, in fact, was given to the defendant to make any compromise, and even that contrary instructions may have been given, and that the defendant was aware of this. It is not, however, to be understood that we have formed, or that we express, any opinion either way. If the defendant, under the circumstances we have assumed, be not liable in this action (as we think he is not), he would (b) 11 C. B. 713. (a) 13 M. & W. 47. (c) 11 Q. B. 292. 1860. SWINFEN v. LORD CHELMSFORD. a fortiori not be answerable, if he had authority, or had reasonable ground for believing that he had, and was not acting contrary to express or implied instructions. We desire also to express no opinion as to the propriety of an advocate in all cases adopting his own view of a case against the instructions of his client, because he is not liable to an action for doing so. I entirely concur in the judgment of my learned brothers, and in the reasons assigned for that judgment, but my own opinion goes somewhat beyond theirs as to the duties and responsibilities of a barrister; and I think it right to express my own opinion, that provided an advocate acts honestly, with a view to the interests of his client, he is not responsible at all in an action. It seems admitted on all hands that he is not responsible for ignorance of law, or any mistake in fact, or for being less eloquent or less astute than he was expected to be. According to my view of the law a barrister, acting with perfect good faith and with a single view to the interests of his client, is not responsible for any mistake or indiscretion or error of judgment of any sort; and if he imagines he has authority to make a compromise when he really has not-this is a mistake either in law or fact; or if, in spite of instructions to the contrary, he enters into a compromise, believing that it is the best course to take, and that the interest of his client requires it, this is but an indiscretion or an error in judgment if done honestly; and it appears to me that, neither for the one nor the other, can any action be maintained against him, and I should have been willing to put my judgment on that ground; and our lamented Brother Watson, who heard the whole of the argument, was entirely of the same opinion, and therefore would certainly have concurred in our judgment that the rule for a new trial be discharged. Rule discharged. THIS BONE v. EKLESS. cause having been referred to one of the Masters of the Court, pursuant to the Common Law Procedure Act, 1854, the Master stated a special case, under the 5th section, which was as follows: June 12. On a rule to enter a verdict on a special case, stated under the 5th section of the Common Law The declaration contained the money counts.-Pleas: Procedure Act, Never indebted, and set-off. it appeared that E., the owner of a ship, in a sale of it to Government, The action was brought by the plaintiff (captain of the order to effect "Pioneer") against the defendant (the owner) for salary, the Turkish &c.: and I have found a verdict for the plaintiff for 4267., authorized B., subject to be reduced by the sum of 2007. if the Court his agent, to shall be of opinion that the defendant is entitled to set off officials of that that sum. bribe the Government. B. accordingly sold the ship The plaintiff sailed to Constantinople in September, for 65001; 1856, with directions from the defendant to sell the vessel. was 60007. to be paid to E., and officials, and received the whole sum of that the whole There was a difficulty in effecting the sale, and the plaintiff 500 to the informed the defendant that in order to effect a sale it necessary to bribe the Turkish officials, and he authorized 65001. from the government. the plaintiff to do so. He directed the plaintiff to inform The case stated him of the nett price offered for the vessel. The plaintiff transaction was telegraphed from Constantinople, "Sold six thousand." a fraud on the The defendant telegraphed in reply, "Sale confirmed." B. paid over to The defendant wrote to the plaintiff to say he had agreed 3004, but did to sell the "Pioneer" for 60007. nett; the price to be paid the remaining for the vessel being 65007., and the 500l. to be paid by him to the Turkish officials for effecting the sale, which sum I find that he agreed to pay. I find that the defendant ratified this sale, and assented to the application of the 500%, and that this was a fraud on the Turkish government. The 65001. was paid to the plaintiff by the Turkish govern government. the officials not pay over 2001.-Held, that E. was entitled to recover the 2001. from B. |