Imágenes de páginas

beld that moneys received from a pension and embarked his pension in business or trade, and deposited in a bank in the name of the pen- in some transactions bad made a profit. It sioner were not subject to proceedings on the was impossible to ideotify the funl in the vari. part of creditors 10 bave them applied in pay- ous articles of property in which, througb nu. ment of debts, although the relations between merous and successive changes, it had become the depositor and the bank were those of cred invested, and it was held ibat the pensioner bad itor and debtor. The debt represented the pen. lost bis right of exemption. sion and that was exempted by the Statute. The order of the General Term should be re

The case of Wygant v. Smith, 2 Lang. 185, versed and that of the County Court afirmed, when limited, as it must be, to the facts ap- with costs to defendant in all courts. pearing in the case, is not an authority for the All concur. plaintif here. In that case the pensioner had



CORN EXCHANGE BANK, Appt., blank or specially to bimself or his own order,

the legal title is in him and be is really the FARMERS NATIONAL BANK of Lan- party in interest and can maintain ap action on caster, Pennsylvania.

the same even though it appears ibat the trans

fer is merely colorable between the parties. (118 N. Y. 143.)

Freeman v. Falconer, 12 Jones & S. 132; Case 1. A bank which has charged up to the v. Hall, 24 Wend. 102; King v. Orser, 4 Duer,

drawer, canceled and sent a draft in 431; Rogers v. Crandall, 26 Hun, 388. payment of a check received through the In reinitting ihe draft defendant paid the agency of two other hanks, which had successive check and thereby discharged all the indorsers. ly received it for collection, the lutter of which, This payment could not be retracted. not knowing that the former was not the owner

Whiting v. Rochester City Bank, 77 N. Y. thereof (the payee's incorsement being in blank), 303. having given credit therefor, reserving the right

Messrs. Clark & Sanborn, for respondent: to cl’arge it back if dishonored, and sent it on for collection and remittance, cannot, at the request

Cameron delivered the check to the Harri. of the druwer and payee of the check, stop pay

sons only for collection. The Harrisons having ment of the draft to the correspondent bank, be- indorsed it to plaintiff expressly for collection, cause the bank first receiving the check for col- plaintiff beld it only as agent for that purpose, lection had become insolvent. The insolvent and bad po other inierest in it. While the cbeck bank only is the agent of the payee of the check, was in plaintiff's possession, Cameron could and the drawee, after signing the draft, is not bave demanded and recovered it, or its value, justified in resisting payment for the benefit of from plaintiff. such pa yee, even assuming that he is entitled to

Potter v. Merchants Bank, 28 N. Y. 641; Van the proceeds thereof.

Amce v. Troy Bank, 8 Barb. 312. 2. Only the first of several banks succes

If the money bau been collected by plaintiff sively rereiving a check for collection is the agent on the check, Cameron could have claimed and of the payee. (B. adley and Brown, JJ., dissent.)

recovered the money immediately from plain.

tiff. (February 25, 1890.)

Dickerson v. Wason, 47 N. Y. 439.

The fact that the proceeils of the check, inGeneral Term of the Supreme Court, First stead of baving been paid to plaintiff in current Department, athrming a judgment of the New money, took ibe form of the draft payable to York Circuit dismi-sing the complaint in an plaintiff's order, cannot make any difference as action to recover from the drawer ile amount to the right to those proceeds. The agency of alleged to be due upon a dishonored draft. Re plaintiff constituted the only consideration for versed.

ibe draft, and the only right of plaintiff to The facts sufficiently appear in the opinions. receive payment of the debt represented by the Messrs. Platt & Bowers, for appellant:

draft; and it matters pot wbether plaintiif be The defendant cannot set up a claim of a considered the direct agent of Cameron, or a third party, where it is not affected by such sub-agent, for in either case Cameron, the prin. claim.

cipal, had the power to revoke the agency, and City Bank of New IJaren v. Perkins, 29 N.

when that power was exercised, that considera. Y. 554; Mc hay v. Draper, 27 N. Y. 256; Aution at once failed, and that right terminated, bery v. Fiske, 26 N. Y. 47; Ilays v. Southgate, and the draft was thereafter of no effect in 10 Hlun, 511; lay: v. Ilathorn, 74 N. Y. 486: plaintiff's bands. McGriffin v. Poiro, 62 N. Y. 329; O'Brien v.

Comstock v. Ilong, 5 Wend. 600; Atkinson v. Jones, 91 N. Y. 193; Gray v. Johnston, L. R. 3 Stafford, 20 N. Y. Wrek. Dig. 49; Sickles v. H. L. 1; Brouon v. Thayer, 12 Gray, 1.

Gillies, 3 Jones & S. 14; Barker v. Prentiss, 6 In the absence of mala fides in a plaintiff's Mass. 430. possession of promissory notes indorsed in

Defendant, by receiving and retaining the NOTE.---Banking; receiving paper for collection.

check and returning it to the drawer, became Sec notes to Freeman v. Citizens Nat. Bank (Iowa 4 indebted to the owner of the check in the L R. A. 422; Pittsburgh Fifth Nat. Bank v. Ash- amount named in it. worth (Pa.) 2 L. R. A. 491; Manufacturers Nat.

People v. Merchants & N. Bank, 78 N. Y. Bank v. Continental Bank (Mass.) 2 L. R. A. 699.

272. 7 L. R. A.

[ocr errors]

Follett, Ch. J., delivered the opinion of the caster Bank to stop payment of its draft, which court:

it did, and the draft was dishonored. In July, 1884, Mary C. Melson resided at The Corn Exchange Bank brings this action Lancaster, Pa., where tbe Farmers National to recover the amount of the draft, which the Bank of Lancaster was located, with which sbe Lancaster Bank defends on the ground that kept an account. July 9, 1884, she drew a the plaintiff did not hold the check for value e check on tbis Bank for $1,871.84, payable to and is not entitled to its proceeds as against John J. Cameron or order, and mailed it to him John J. Cameron, the payee. The defense is at Indianapolis, Ind., who, July 15, 1884, in- pot placed on the ground that it is necessary dorsed it in blank and delivered it to a firm of to protect the defendant from any present or private bankers doing business at Indianapolis future liability, for it is conceded ibat it has under the name of “Harrisons' Bank.” The exactly performed all of its duties in respect to cbeck, though indorsed in blank, was in fact the check. It does not deny tbal it became delivered and received for the purpose of col- the agent, for a consideration, of the Corn Exlection only. The Corn Exchange Bank was change Bank, and promised by its draft to pay the New York City correspondent of Harrisons' the plaintiff $1,870. Bank, and they exchanged collections and kept By the law of this State Harrisons' Bank mutual accounts, Harrisons' Bank being accus- was the agent for Cameron, but neitber the tomed to draw sigbt bills or cbecks against its plaintiff nor defendant was bis agent; and bad balance with the Corn Exchange Bank. The either neglected to take the necessary steps to view we take of this case makes it unnecessary collect the check, to Cameron's injury, he to further consider the manner in which these would bave bad no rigbt of action against accounis bad previously been kept.

either, but would bave bad a cause of action July 15, 1884, Harrisons' Bank indorsed the against Harrisous' Bank. Allen v. Merchants check to the Corn Exchange Bank for collec- Bank, 22 Wend. 215; Montgomery Co. Bank tion and credit and forwarded it by mail. It v. Albany City Bank, 7 N. Y. 459; Commercial was received July 17, and credited by the Corn Bank of Pa. v. Union Bank, 11 N. Y. 203; Exchange Bank io Harrisons' Bank, reser ing, Ayrault v. Pacific Bank, 47 N. Y. 570; Piltshowever, the right to charge it to Harrisons' burg Exchange Nat. Bank v. Third Nat. Bank, Bank if it should be dishonored. It was not 112 U. S. 276 128 L. ed. 722]; Morse, Banks found by the court, nor was it isserted, that the and Banking, ed ed. $ 272. Corn Exchange Bank knew or bad the sligblest In Montgomery Co. Bank v. Albany City reason to suspect that Harrisons' Bank did not Bank and the Bank of the State of New York, own the check and was acting only as a col. supra, the plaintiff indorsed and sent lecting agent for Cameron or some undisclosed draft to the Albany City Bank for collection, owner, and so the Corp Exchange Bank became wbich in turn indorsed and sent it to the Bank the holder of the check in good faith, and of the State of New York for collection, but could, bad it been dishonored, bave maintained the latter bank degligently omitted to present an action thereon for its collection. July 17, the draft for payment, and the drawer and in. the Corn Exchange Bank indorsed the check dorsers were discharged. The plaintiff sued "for collection and remittance” to the Farmers' both banks and recovered against both at cir National Bank of Lancaster, the drawee, with cuit, and the judgment was affirmed by the directions to redit by draft, payable in the City general term; but it was reversed in the court of New_York. July 18 the check was received of appeals as to the Bank of the State of New by the Farmers' National Bank of Lancaster, York, and atlirmed as to the Albany City Bank. was charged to the account of the drawer, Il was said: “The New York State Bank was Mary C. Melson, and canceled. For this serv- the agent directly guilty of the neglect. That ice ibe Farmers' National Bank of Lancaster bank was employed to do the service by the charged the Coro Exchange Bank $1.94, and plaintiff's agent, the Albany City Bank, as its on the same day drew its check, or sight draft, agent, to which it was alone responsible for its payable to the Corn Exchange Bank or order, acis and neglect, and for wbicb' the latter, acon the First National Bank of New York for cording to the settled rule, was alone respon$1,870, and mailed it to the Corn Exchange sible to the plaintiff, there being no agreement Bank. The check was no longer a valid con- , to the contrary, expressed or implied.”. tract. The liability of the drawer and indorsers It is unnecessary 10 specially consider the thereon was ended and could never be restored. cases which were decided in this State prior to The Lancaster Bank bad legally and in good Allen v. Merchants Bank, supra, or those of faitb discbarged its duty to ibe drawer, the in- States in which it is beld that the bank receiving dorsers and the bolder of the check, and the payment of the paper is the agent of the owner Corn Exchange Bank bad accepted of the drast 'rotwithstanding it may bave passed through of the Lancaster Bank in discharge of the lia- several banks before reaching the bauk makbility of the drawer and indorsers. The Lan- ing the collection. caster Bank accepted of the agency tendered The ground upon which the defendant seeks by the Corp Exchange Bank, performed the to justify the refusal to perform its contract services and received payment iberefor. The with its principal seems to be that if the plainrelation of principal and agent was established, tiff receives the inoney, it ought to pay it to and in discharge of its liability thus assumed Jobo J. Cameron, but may not, and therefore the Lancaster Bank mailed the draft. July 17, this defense. 1884, Harrisons' Bank failed, and on the i8th, Assuming, but not deciding. that Cameron but after the check bad been paid and canceled, could maintain an action against the Corn Exand the draft given in payment mailed, the change Bank to recover the amount of the drawer of the check, Mary C. Melson, and tbe check, such fact would in no wise support this payee, John J. Cameron, requested the Lan- | defendant's contention. No contract relation exists between it and Cameron, nor is there plaintiff for collection. And it appears that any privity between them.

this portion of the letter precerled tbe staiement When the owner of commercial paper delivers of the remittance and was printed and was thie it for collection to bank A, which forwards it for ordinary form of the letters of the Blurrisons in collection to bank B, which, in turn, forwards it which all their transmissions of paper to the for collection to bank C, 10 which it is paid, it plaintiff were made. has been beld that if bank C, instead of paying That fact may, in view of the manner that tbe money to bank B, retains and applies it on a the indorsement was made, deny to that tordebt due from bank B, the owner (bank A be mal portion of the letter the significance which ing insolvent) may recover of bank C; but we it might otherwise have bad. But it bas no are unable to see that these cases justify this essential importance upon the question here, defendant in resisting the payment of its draft, inasmuch as the plainuff advanced nothing to which it bas to defense, for the benefit of a upon the check. The plaintiff had for many third person, who may bave a right to recover years had an account current with the Harrithe movey represented by it.

sons arising from remittances of paper from The check wbicb the defendant received each to the other for collection and credit of from the plaintiff baving been paid, charged the proceeds, and the latter from time to time to the account of the drawer and surrendered, drew drafts upon the former, When the the account closed, and the draft therefor de- check was received by the plaintiff, the amount livered to the Corn Excbange Bank, the de- of it was credited to the Harrisons in such acfendant cannot now assert as against its prin count, and, after the protest of the draft, was cipal the legal rights or equities of a third charged back to them in accordance with the person. Mckay v. Draper, 27 N. Y. 256; Au course of dealing, as understood between those bery v. Fiske, 36 N. ¥. 47; Wharton, Ag. parties, that if paper received and credited was $ 242, and cases there cited.

not paid it should be placed to the debit of the The judgment should be reversed, and a new party sending it. trial granted, with costs to abide the event. The check having been placed in Harrisons' Potter, Vann and Parker, JJ., concur. bands for collection, the plaintiff by crediting

them with it in general account acquired no Bradley, J., dissenting:

title to it as against Cameron, the payee. Ilis I am unable to concur with the majority of was the right to reclaim the check or to obtain the court in the result or reasons given for it. its proceeds, if paid, or to stop its payment by

The check drawn by Mrs. Melson on the de- the defeodapt to any party other than a holder fendant was indorsed in blank by Cameron, in good faith for value, which position the the payee, and left with the Harrisons, the plaintiff did not have. Dickerson v. Wason, 47 Indianapolis bankers, for collection. They N. Y. 439; Warner v. Lee, 6 N. Y. 144; Comindorsed it to the plaintiff's casbier for collec- mercial Bank v. Marine Bank, 1 Abb. App. tion, and sent the check to the plaintiff, their Dec. 405; Farmers & M. Nat. Bank v. King, correspondent in the City of New York, and 57 Pa. 202. the laiter in like manner indorsed it to the The question now arises wbether the situacasbier of the defendant, and sent the checktion in which the defendant was placed, or its to bim with directions to remit to the plaintiff relation assumed to the plaintiff, was such as its proceedls in New York City funds. This to deny to it the right to make the defense was received by the defendant on July 18, and which it sought to make in this action. Treaton the same day it drew its draft on the First ing the defendant as a mere volunteer in the National Bank of New York for the amount devial of its liability upon the draft, it clearly less exchange, and mailed it to the plaintiff. I could not defeat a recovery. It could not in The Harrisons failed and suspended payment such case question the title of the plaintiff. on July 17, and immediately after bearing of That was the principle of the cases of the City such failure and on July 19 Cameron requested Bank of New llaven v. Perkins, 29 N. Y. 554; the defendant not to pay it, and afterwards, Mckay v. Draper, 27 N. Y. 256; Aubery v. before the defendant's draft was presented, re- Fiske, 36 N. Y. 47, and Hayes v. Ilathorn, 74 quested the defendant to stop its payment, and N. Y. 486, cited by the defendant's counsel; thereupon, on the last-named day, ibe defend and the same may be said of the other cases ant notified the bauk on which its draft was cited by him on the question of the right of drawn not to pay tbe draft and asked the the defendant to defend the action. The dis. pluintiff to bold it. It was, however, after ability may arise ont of the relation which one wards presented to the drawee, and payment party assuines to another, whom he represents, being refused, the draft was protested for non- and between whóm, in some sense, that of prinpayment. This action was brought on that cipal and agent exists, and the latter may not draft, and the question is whether the facts, so be liable to third persons, but to bis principal stated, constitute a defense. They clearly only while the relation exists; por can the would not if the plaintiff bad taken the appar. pariy who undertakes to perform a duty asent and actual tiile to the check and become a sumed to another, wben called upon for per. holder of it in good faith for value, because formance, set up by way of relief from liability the indorsement in blank by the payee appar- to do so the right in a third party with wbom le ently operated as a transfer of the check to the is not connected and with whom he has personHarrisons. But the plaintiff parted with noth-ally no concern upon the subject. Montyomery ing on the faith of the check. While the letter Co. Bank v. Albany City Bunk, 7 N. Y. 459. in which it was received by the plaintiff stated But that is not this case. The payee of the that it was inclosed for credit, the indorsement check never parted with the title to it. The made upon the check by the Harrisons was re- Harrisons were employed by bim to collect it, strictive and purported that it was sent to the and the plaiutiff was employed by them to aid in the accomplishment of the purpose fortified in asserting that the plaintiff bad no wbich it was left with them by the payee. The right to the fund represented by tbe draft, as latter had the right to step in and intercept the effectually as Cameron could bave done if he check in the bands of any party other tbad a had been interpleaded as a party defendant holder in good faith for value, and reclaim it as Comstock v. Hoag, 5 Wedd. 600; Herrick v. his property, and in like manner to interrupt Carman, 10 Jobps. 224; Burker v. Prentiss, 6 the transmission of the proceeds of it to the Mass. 430. Harrisons and recover them. Tbis right of And in view of the facts found by the trial the owner is within the doctrine of the Com- court, and as before stated, it is unnecessary to mercial Bank and Dickerson Cases before cited. further consider the state of account between And the cause for its attempted exercise was the plaintiff and the Harrisons, as it is quite the insolvency of the Harrisons. The check unimportant on which side of it the balance bad then been charged by the defendant to the was, since the credit of the obeck to the latter drawer, and the draft, as directed by the plain- was on general account, and no advance was tiff, had been mailed to it by the defendant. made to them on account of the check. Me The latter bad discbarged its duty to both the Bride v. Farmers Bank, 26 N. Y. 450; Lin. drawer and the plaintitf, and nothing remained dauer v. Fourth Nat. Bank, 55 Barb. 75; Dod for it to do towards the accomplislıment of the v. Fourth Nat. Bank, 59 Barb. 265. purpose for wbich the cbeck was drawn and In Montgomery Co. Bank v. Albany City transmited through the plaintiff to the defend. Bank the question was as to wbom the corieant. The fund was represented by the draft, spondent of another, wbo bad received comwhich the defendant bad mailed to the plain. mercial paper for collection, and sent it to him tiff. The draft was the means by which the for a like purpose, was liable for failure or proceeds of the check were sent on their way neglect to perform the auty assumed to charge to the destination contemplared when the check the indorsers. It involved no consideration was left with the Indiana polis bankers, and baving relation to the fund when collected, they belonged to Cameron, its payee. He, as and is not in conflict with the later cases, to the such owner, having the right to step in and effect that the beneficial owner of the proceeds control their destination, and thus countermand of the paper when collected may effectually the authority which he had given to the Har. assert bis right to the fund as against any party risons to receive the proceeds of the check, receiving it iu the execution of the agency. It with that view requested the defendant to act is said in the prevailing opinion in the present for bim and stay tbe fund from the hands of case that if the check bad been dishonored, the plaintif hy stopping the payment of the the Coru Exchange Bank could have maindrafi so forwarded to it. This was done, and tained an action upon it. Assuming that, if in doing so the defendant rpresented him. not interrupted by the payee, it might bave The facts justifying bis right to do so sup: been so, it is wbolly without importance upon ported the action of the defendant and afforded any question in this case. But against whom to it a defense in the plaintiff's action upon the could such action be supported? Certainly not draft, unless the defendant by its relation to against the defendant without its acceptance the plaintiff was disabled from acting upon the of the check (Atty-Gen. v. Continental Life request and direction of the owder of the fund. | Ins. Co. 71 N. Y. 325); or agaiost Cameron,

The situation presented by the facts was tbe payee and indorser, because he was the that tbe Harrisous were the agents of the payee beneficial owner of it; por against Harrisous, of the check and the plaintiff was their agent the plaintiff's principal. And a further reato aid in its collection, and by the latter the son why plaintiff could bave maintained no defendant was called upon for its payment. action in its own dame upon the check is that Tbe direction of Cameron to stop the payment it took no apparent title. The purpose of the to the plaintiff operated as a revocation of the indorsemeni by the Harrisons, as expressed in agency be bad set in motion, and to stay, at the it, was that it was made to the plaintiff for col. then stage of their progress, the means which had lection of the check. Tbis resiriction denied been adopted for its execution. It was unim. 1o the plaintiff the apparent title, and it had portant for that purpose and such effect that none in fact to support any action in its name ibe defendant bad issued and forwarded its upon the check. Daniel, Neg. Inst. $$ 698, draft. The direction wbich be had a right to 699; White v. Miners Nat. Bank, 102 U. S. give, and the defendant, in view of the facts, | 658 [26 L. ed. 250); Sigourney v. Lloyd, 8 had tbe rigbt to observe, was that tbe latter Barn. & C. 622; Hook v. Pratt, 78 N. Y. 371. should pot pay his money to the plaintiff, who Tbe purpose of the suggestion that the deas against Cameron and bis direction bad no fendant charged the plaintiff $1.84 for the rigbi to it. And thus was afforded to the de- draft is not apparent. If, however, it was fendant a defense founded upon the right of made to show a consideration between the par. Cameron and his authority or requirement. ties for the draft issued by the defendani, it The question would bave been no different if may be added that this amount retained by the the defendant's messenger bad been on bis way defendant was taken from the proceeds of the with the funds 10 the plaintiff, and bis mission check for exchange, wbich was legitimately had been countermanded before handing over within the expense of collection of the check the money to the latter. Tbe draft sent was a in the usual course for tbat purpose, and the more trat smission in that form of the appar. amount of the draft was so much less than ent liability of the defendant to pay, upon that of the check. It seems to be without sig. wbich the plaintiff probably may bave realized nificance for any purpose in this action. but for the interruption caused by the direc- I think the judgment should be affirmed. tion given to the drawee of the draft not to Brown, J., concurs; Haight, J., Dot aitpay it.

It follows that the defendant was jus-1 ting.


A PRESA Debayor Cointi for frew Lobudo ancorun of all be ferreis authority therefore is reasonably

Lewis DANIELS et al., Appts., 16 Met. 166; Gardner v. Boston, 120 Mass. 266; 0.

Johnson v. Noble, 13 N. H. 236: Pratt v. Hack CITY OF NEW LONDON.

ett, 6 Jobns. 14; Allen v. Galpin, 9 Barb. 246.

Messrs. Jeremiah Halsey and Augustus (58 Conn. 156.)

Brandegee, for appellee: 1. An attorney has no implied authority clients, who appeared and took their chances

The original submission was approved by the to submit a case in which he is employed to arbitration by a submi-sion made in pais within the trial, and they are estopped from conout order or direction of the court, or the knowl- testing the award. edge of his client.

Blakely v. Graham, 111 Mass. 8. 2. A material change in a submission to The autbority to “submit" under such cir. arbitration by the parties cannot be made by an cumstances includes the authority to amend attorney, by an act in pais, unless he is expressly the submission, where the change is made in authorized to make it.

good faith and for the best interests of the 8. A change in a written submission to clients.

arbitration by which the award is to be made illing v. Munson, 2 Conn. 691; Brooks v. Apal instead of being returned to court for judg. New Durham, 55 N. H. 659. ment by the court is a material change such as an attorney cannot make unless expressly autbor- the attainment of the object sought that the

It was necessary and highly expedient for ized. (September 27, 1889.)

change suggested, and which was for the bene

fit of the appellants, should be accepted by the the Superior Court New London County to inferred. in favor of defendant in a suit to set aside an Brackett v. Norton, 4 Conn. 524; Holker v. award, and to enjoin the taking of any pro- | Parker, 11 U. S. 7 Cranch, 449 (3 L. ed. 401). ceedings under it. Rerersed.

Arbitrators bave authority to decide all ques The facts sufficiently appear in the opin- tions of fact and of law necessary to the de ion.

cision of the matters submitted, and their Messrs. S. Lucas and A. P. Tanner, for award is conclusive even though founded upon appellarts:

a mistake of law, unless the submission itself Where no suit is pending an attorney has no plainly reserves the legal questions involved for implied powers to submit a matter to arbitra. ihe review of a court of law. tion.

Boston Water Power Co. v. Gray, 6 Met. 131, Morse, Arbitration and Award, 16; Billings, 165; Ward v. Am. Bank, 7 Met. 439; Fair Arbitration and Awards, 53; Weeks, Attor- child v. Adams, 11 Cush. 550; Sinith v. Boston neys at Law, $ 233.

& M. R. Co. 16 Gray, 521. The submission by an attorney, even in a Their award was conclusive as well of the pending suit, must be with the approval of the law as of fact. court and appear of record.

Bigeloun v. Neuell, 10 Pick, 348; Gardner v. Mitchell v. Harris, 2 Ves, Jr. 129; Millar v. Boston, 120 Mass. 266; Ennok v. Pratt, 26 Vt Criswell, 3 Pa. 449; Stokely v. Robinson, 34 Pa. 630; 2 Parsons, Cont. 701. 315; Evars v. Kamphaus, 59 Pa. 379; Bates v. In the light of these authorities the amend. Visher, 2 Cal. 355.

ment to the original submission gave no new There is a well-recognized distinction as to powers to the arbitrators, and deprived the ap the position of an attorney in relation to pro-pellants of no rights. ceedings in and out of court.

An attorney at law, having the conduct of a Derwort v. Loomer, 21 Conn. 245; Perry v. case, is authorized to submit it to arbitration, Simpson Waterproof Mfg. Co. 40 Conn. 317; wbenever that form of proceeding is, in bis Rockwell v. Taylor, 41 Conn. 57; Tiffany v. judgment, best calculated to promote the inLord, 40 How. Pr. 481; Lockwood v. Black ierests of his client. Hawk Co. 34 Jowa, 235; Starr v. Hall, 87 N. Bacon, Abr. title Arbitration and Award; C. 381; Herbert v. Alerander, 2 Call (Va.) | Filmer V. Deber, 3 Taunt. 486; Holker v. 503; Brooks V. Kearns, 86 Ill. 547; Sperry v. Parker, 11 U. 8. 7 Cranch, 419 (3 L. ed. 401); Reynolds, 65 N. Y. 179; San José v. Younger, Weeks, Attorneys at Law, 404, 405; 2 Par29 Cal. 147; Madison Ins. Co. v. Griffin, 3 Ind. sons, Cont. 5th ed. 689; 1 Greenl. Ev. $ 186; 277; Hannum v. Wallace, 9 Humpb. 129; 2 Brooks v. New Durham, 55 N. H. 559; Hutch. Greenl. Ev. $ 186; 1 Wait, Act, and Def. 439. in: v. Johnson, 30 Am. Dec. 628, note, 13

An attorney in a case in court cannot stipu- Conn, 376; Clark v. Randall, 76 Am. Dec. 263, late not to appeal, nor that a decision shall note, 9 Wis. 135; Buckland v. Conuray, 16 be final.

Mass. 396; Vail v. Conant, 15 Vt. 321; Der. 1 Wait, Act. and Def. 437; People v. New wort v. Loomer, 21 Conn. 256; Gorham v. Gale, York, 11 Abb. Pr. 66; Love v. Lawrence, 22 7 Cow. 739; Morris v. Grier, 76 N. C. 410; N. J. L. 99; Jenkins v. Gillespie, 10 Smedes & Morse, Arbitration and Award, 15; Watson, M. (Miss.) 31; Arthur v. Homestead F. Ins. Co. Arbitration and Award, 65; Wilson v. Young, 78 N. Y. 462.

9 Pa. 101; Everett v. Charlestown, 12 Allen, The change made in the submission was a 93. material one. It cuts the parties off from all right of review.

Torrance, J., delivered the opinion of the 6 Wait, Act. and Def. 525; Bigelono v. Nerell, court; 10 Pick. 348; Boston Water Power Co. v. Gray, On the 27th of August, 1887, a controversy

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