And in view of the facts found by the trial court, and as before stated, it is unnecessary to further consider the state of account between the plaintiff and the Harrisons, as it is quite unimportant on which side of it the balance was, since the credit of the check to the latter was on general account, and no advance was made to them on account of the check. McBride v. Farmers Bank, 26 N. Y. 450; Lindauer v. Fourth Nat. Bank, 55 Barb. 75; Dod v. Fourth Nat. Bank, 59 Barb. 265.

in the accomplishment of the purpose fortified in asserting that the plaintiff had no which it was left with them by the payee. The right to the fund represented by the draft, as latter had the right to step in and intercept the effectually as Cameron could have done if he check in the bands of any party other than a had been interpleaded as a party defendant. holder in good faith for value, and reclaim it as Comstock v. Hoag, 5 Wend. 600; Herrick v. his property, and in like manner to interrupt Carman, 10 Johns. 224; Burker v. Prentiss, 6 the transmission of the proceeds of it to the Mass. 430. Harrisons and recover them. This right of the owner is within the doctrine of the Commercial Bank and Dickerson Cases before cited. And the cause for its attempted exercise was the insolvency of the Harrisons. The check had then been charged by the defendant to the drawer, and the draft, as directed by the plaintiff, had been mailed to it by the defendant. The latter had discharged its duty to both the drawer and the plaintiff, and nothing remained for it to do towards the accomplishment of the purpose for which the check was drawn and In Montgomery Co. Bank v. Albany City transmitted through the plaintiff to the defend- Bank the question was as to whom the corre ant. The fund was represented by the draft, spondent of another, who had 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 duty assumed to charge to the destination contemplated when the check the indorsers. It involved no consideration was left with the Indianapolis bankers, and having 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 his right to the fund as against any party risons to receive the proceeds of the check, receiving it in the execution of the agency. It with that view requested the defendant to act is said in the prevailing opinion in the present for him and stay the fund from the hands of case that if the check bad been dishonored, the plaintiff by stopping the payment of the the Corn Exchange Bank could have maindraft so forwarded to it. This was done, and tained an action upon it. Assuming that, if in doing so the defendant represented him. not interrupted by the payee, it might have The facts justifying his right to do so sup. been so, it is wholly 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 owner of the fund. Ins. Co. 71 N. Y. 925); or against Cameron, The situation presented by the facts was the payee and indorser, because he was the that the Harrisous were the agents of the payee beneficial owner of it; nor against Harrisons, 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 have maintained no defendant was called upon for its payment. action in its own name upon the check is that The 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 indorsement by the Harrisons, as expressed in agency he had set in motion, and to stay, at the it, was that it was made to the plaintiff for colthen stage of their progress, the means which had lection of the check. This restriction denied been adopted for its execution. It was unim- to 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 the defendant had issued and forwarded its upon the check. Daniel, Neg. Inst. § 698, draft. The direction which he 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 the right to observe, was that the latter Barn. & C. 622; Hook v. Pratt, 78 N. Y. 371. should not pay his money to the plaintiff, who as against Cameron and his direction had no right to it. And thus was afforded to the defendant a defense founded upon the right of Cameron and his authority or requirement. The question would have been no different if the defendant's messenger had been on his way with the funds to the plaintiff, and his mission had been countermanded before handing over the money to the latter. The draft sent was a mere transmission in that form of the apparent liability of the defendant to pay, upon which the plaintiff probably may have realized but for the interruption caused by the direc tion given to the drawee of the draft not to pay it. It follows that the defendant was jus

The purpose of the suggestion that the defendant charged the plaintiff $1.84 for the draft is not apparent. If, however, it was made to show a consideration between the parties for the draft issued by the defendant, it may be added that this amount retained by the defendant was taken from the proceeds of the check for exchange, which was legitimately within the expense of collection of the check in the usual course for that purpose, and the amount of the draft was so much less than that of the check. It seems to be without significance for any purpose in this action. I think the judgment should be affirmed. Brown, J., concurs; Haight, J., not sit

ting.

CONNECTICUT SUPREME COURT OF ERRORS

1. An attorney has no implied authority
to submit a case in which he is employed to
arbitration by a submission made in pais with-
out order or direction of the court, or the knowl-testing the award.
edge of his client.

2. A material change in a submission to
arbitration by the parties cannot be made by an
attorney, by an act in pais, unless he is expressly
authorized to make it.

3. A change in a written submission to arbitration by which the award is to be made final instead of being returned to court for judgment by the court is a material change such as an attorney cannot make unless expressly author

APPEAL by plaintiffs from a judgment of attorney. His authority therefore is reasonably

make the amendment to the original submission so as to bind the plaintiffs.

between the plaintiffs and defendant concern- I ing the amount and validity of certain sewer assessments was pending before a judge of the If he had such authority it must have been superior court under the Statute, and on tha: conferred upon him by the plaintiffs as a matday the parties agreed to submit the matters inter of fact, expressly or by implication, or he controversy to arbitration. The judge before had it by virtue of his retainer and employwhom the matter was pending was made at ment as an attorney in the case. first the sole arbitrator, but another judge was afterwards by agreement associated with Lim.

The written submission provided, among other things, that the arbitrators, in hearing and determining the controversy, and in taxing costs, should be governed by the laws applicable to such cases and by the rules of practice obtaining in the trial of causes in the superior court; that the written award to be made should be returned to the Superior Court for New London County, and that the court should render judgment pursuant thereto.

The court finds that the plaintiffs did not expressly confer such authority, but the defendant contends that the attorney had an implied authority arising out of the special circumstances of this particular case and his relations to it and to his clients. If this last claim means that the plaintiffs in fact conferred the authority by implication at least, then the court below should have so found, for this is a conclusion of fact, and not being found this court cannot draw such conclusion. Had the facts warranted such conclusion it is reasonable to suppose the court would have so found.

That an attorney-at-law retained and employed in a cause pending in a court of common law has authority, without the consent or knowledge of his client, to submit such cause to arbitration by rule of court or under the di

Under this submission, which was drawn up If, however, the claim means that the attor by the attorneys of the plaintiffs, and was ney had such authority by virtue of his emsigned by the attorneys of both parties, a hear-ployment in the case and not otherwise, such ing attended by all the parties in interest was claim will be considered in connection with the had before the arbitrators. Some months af- next question in the case, which is, Did the ter the hearing was finished, but before the retainer and employment of the attorney in the award was published, one of the attorneys em case confer upon him such authority? ployed by the plaintiffs, without the consent or knowledge of his associate, and without the authority or knowledge of the plaintiffs, but with the consent of the attorney of the defend ant, so amended the written submission as to make the award final and to give the arbitra-rection of the court, seems to be established by tors full power to decide the matters referred to them as they should consider right and just. Shortly after this amendment was made the arbitrators, without further hearing, and in pursuance of the powers conferred upon them by the amended submission, published their award.

numerous authorities and is not questioned by the plaintiffs in the case at bar. And if the attorney can under such circumstances bind his client by the submission, we think it would follow that he could bind him by an amendment made to the submission in good faith without the knowledge or consent of his client.

The defendant contends that the present case comes within the above rule, or, if not, he contends that an attorney-at-law, having the man

pending in court or not, is by law authorized to submit the same to arbitration without the consent or knowledge of his client or of the court.

As soon as the award and amendment came to the knowledge of the plaintiff's they repudiated and disapproved of both, and of the action of their attorney in making the amend-agement of a matter in controversy, whether ment, and brought suit to restrain the defendant from enforcing the award and to have it set aside, on the ground that the amendment materially changed the submission and had been made without their authority or knowledge. On the trial of the suit in the court below the court found that the amendment was made in good faith by the senior counsel in the case, that he believed he had full power to make it, and believed that it was for the best interests of all concerned that it should be made.

Let us examine the first of these positions. At the time the original submission was executed the cause was pending before a judge of the superior court under the Statute, and when the amendment was made the matter was pending before the arbitrators; and so it seems to be claimed by the defendant that there was in either case a cause pending in court within the above rule.

A special finding was made, and on the facts so found the plaintiffs requested the court to Without determining whether this claim is a rule that the attorney who made the amend valid one or not, it may for the purposes of ment had no authority to do so, but the court the argument be granted, and still it does not refused to so hold, and rendered judgment dis help the defendant. There is no pretense that solving the temporary injunction and for the either the submission or the amendment were defendant to recover its cost. From that judg- made under the authority or direction of the ment the plaintiffs appealed, and the sole ques-tribunal before which the matters to which the tion made before this court is, whether the submission or the amendment relate were pendcourt below erred in refusing to rule as re-ing, within the spirit and intent of the rule we quested.

On the argument the defendant contended that the amendment did not materially change the original submission and so did not affect the rights of the parties, but we are satisfied that the amendment was a material one.

The main question then is, whether the attorney upon the facts found was authorized to

are considering.

The submission was made in pais; with its execution the judge had nothing whatever to do; and by its terms he had nothing further to do with the submission or the matters involved therein. This is true also of the amendment, even though made at the suggestion of the arbitrators, as the court finds. We think, there

should be remembered that an attorney in England occupies towards his client a very different relation from what he does in this country. There he is frequently the general agent of the client, and transacts a great deal of his general business. But here an attorney is generally employed to attend to his client's interest in reference to some single controversy.

fore, that the case does not come within either | be attached to these dicta of English judges, it the letter or the spirit of the rule, because, even if it be conceded that at the time the submission and amendment were made there was a cause pending in court, still both submission and amendment were made in pais and not under nor in subjection to the authority of the tribunal in either case. As to the other position of the defendant, we are satisfied that the weight of authority is against it.

The cases establishing an attorney's authority to submit to arbitration a pending cause under the authority and direction of the court are somewhat numerous, and as is well said in Markley v. Amos, 8 Rich. L. 468, this of itself "affords a fair inference that he cannot submit in any other way."

We have been referred to no well-considered, case, nor do we know of any, which supports this claim of the defendant. On the other hand some of the authorities cited on the plaintiffs' brief are directly against such a position. See the cases of Jenkins v. Gillespie, 10 Smedes & M. (Miss.)31; Markley v. Amos, supra; Scarborough v. Reynolds, 12 Ala. 252; Morse, Arbitration and Award, 16.

"In Pennsylvania, too, there are decisions which might seem to imply that the power of an attorney to submit to arbitration was not confined to the making of a consent order in a pending cause to refer it to arbitration. See Bingham v. Guthrie, 19 Pa. 419.

"But in considering what weight should be attached to the dicta of Pennsylvania judges, it should also be borne in mind that in Pennsylvania the authority of attorneys is more extensive than elsewhere. See Lynch ▾. Com. 16 Serg. & R. 368: Wilson v. Young, 9 Pa. 101. "While I bave found no case deciding that an attorney has a general authority to submit his client's controversies to arbitration, there are cases in which it has been decided that he does not possess such general authority. See Jen-. kins v. Gülespie, 10 Smedes & M. 31; Scarborough v. Reynolds, 12 Ala. 252.

In addition to the cases cited there is the case of McGinnis v. Curry, 13 W. Va. 29, decided in 1878, where the court holds that an attorney has no authority, before or after suit brought, to make an agreement in pais to submit his client's cause to arbitration without special authority of his client. So far as the reasoning and conclusions of the court in that case on the point in question here are applicable to the case at bar we adopt them, and feel justified in quoting from the opinion at some length. The court says: "The authority of an attorney at common law by a consent order made in the court to submit a pending suit to arbitration is universally admitted. And the court, in cases where such a consent order has been made at the instance of counsel, have frequently spoken of the authority of counsel to submit a controversy of his client to arbitration in general language which would be broad enough to include, not only a case of a submission of a controversy in a pending suit by an agreement of counsel in pais, but even in a controversy about which no suit was pending. But all the cases in which such loose and general language was used were cases where the authority of counsel was exercised not only in a pending suit, but by a consent order agreeing to the submission made in open court. See Wilson v. Young, 9 Pa. 101: Lolker v. Parker, 11 U. S. 7 Cranch, 449 [3 L. ed. 401]; Somers v. Balabrega, 1 U. S. 1 Dall. 164 [1 L. ed. 83]; Bing-thority from his clients." ham v. Guthrie, 19 Pa. 418.

"It is true that these were cases in which there was no lis pendens. But it seems to me that, as it is held that an attorney by reason of his being employed to institute a suit or defend a threatened suit has no authority to submit by an agreement in pais signed by the attorney the case to arbitration, that it must follow that he has no such authority though the suit be pending. An authority to ac: in pais could only be inferred, if it existed, from his em ployment before the institution of the suit as an attorney, and such employment as we have seen confers no such authority.

"In England, though, so far as I know, it has never been decided that an attorney had a right to submit his client's controversy to arbitration when no suit was pending, or by an agreement in pais, and not by an order of court when a suit was pending, yet there are English cases from which it may be inferred that the courts may there consider the power of the attorney to submit his client's cause to arbitration as general, and not confined to pending suits or to orders of reference made in courts. See Banfill v. Leigh, 8 T. R. 571; Re Jamieson & Binns, 4 Ad. & El. 945.

"But in considering how much weight should

"This conclusion is not at all inconsistent with the numerous cases deciding that an attorney has authority in a pending suit by an order of court to submit the cause to arbitration. When the courts have assigned any reason for their decisions they have been based, not merely, if at all, on the employment of the counsel by the client, but on the fact that he is an officer of the court acting in the presence and under the control of the court, and as such has a right to take any legal steps he may deem proper in prosecuting or defending the suit. But this reasoning has no application to any action of the attorney in pais, such as agreeing to submit the case to arbitrators by an agree ment signed by him without any special au

If an attorney cannot, without special authority from his client, submit a controversy to arbitration by an act in pais, we think it follows that he cannot by any like act, without such authority, materially change a submission already made or adopted by his client. To hold otherwise would give the attorney power to do indirectly what he has no power to do directly.

The case of Jenkins v. Gillespie, supra, was a case where an attorney amended the original submission without authority from his client, and the court held he was not bound by the act of the attorney. The court says: "But admitting that an attorney has in general power

to submit, has he power to change the terms lief that the law under the circumstances gave of the submission made by the parties? That would be to change their contract. . . . We think it would be going too far to say his assent to the change should bind his client."

In the case at bar, although the court finds that the submission was drawn and signed by counsel who believed and were justified in the belief that the language and legal effect of the submission were intrusted to their judgment and discretion, still the submission was the contract of the parties, its language was theirs and theirs only, and in legal effect it had all the incidents of a contract of submission made by the parties out of court. They had made it theirs by ratifying and adopting what their attorneys had done, and had been heard under such contract as completed. After such hearing the plaintiffs had a right to rest in the be

their attorneys no binding authority to make a material change in that completed contract. Inasmuch, therefore, as the court below failed to find that the attorney had any authority from the plaintiffs to make the amendment, and we are of opinion that the law gave him none, we are constrained to hold that he had no authority to make the amendment so as to bind the plaintiffs.

We regret that the facts and the law bring us to such a conclusion in this case, for the amendment was made and suggested in the utmost good faith, and was well adapted to promote the best interests of all parties concerned.

There is error in the judgment complained of.
In this opinion the other Judges concurred.

George BECK

v.

IOWA SUPREME COURT.

THE GERMAN KLINIK et al., Appts.

(78 Iowa, 696.)

It is the duty of a physician who has set a broken leg to give proper instructions for the use and care of it, and for failure to do so he is liable in case of a resulting injury.

(Robinson and Granger, JJ., dissent.)

(October 28, 1889.)

APPEAL by defendants from a judgment of the District Court for Scott County in favor of plaintiff in an action to recover damages for failure on the part of defendants to use due skill in treating plaintiff's broken leg. Affirmed.

Messrs. Bleik Peters, D. B. Nash and George E. Hubbell, for appellee:

Plaintiff employed the defendants for reward, to set, reduce, care for, cure and heal the fractured limb. Under such contract the defendants not only obligated themselves to proper, ordinary and diligent care and treatment in the performance of their professional duties, but to continue such services so long as the condition of the injured limb should require

treatment.

Ballou v. Prescott, 64 Me. 305-313.

Beck, J., delivered the opinion of the court: I. The defendaut, The German Klinik, is an incorporation whose business appears to be connected in some way with the treatment of diseased and injured persons; the defendants, Gustave Hoepfner and others, are members of the incorporation and surgeons and physicians The facts sufficiently appear in the opinions. having charge of the patients treated by the Messrs. Heinz & Hirschi, for appellants: corporation. Plaintiff by some accident broke Defendants would be entitled to judgment the bones of his left leg, and employed defendnotwithstanding the general verdict for plain-ants to treat him. After treatment according to tiff, if it appeared by the special findings that plaintiff had failed to establish some fact essential to his right of recovery.

Conners v. Burlington, C. R. & N. R. Co. 71 Iowa, 492. See also Home Ins. Co. v. Holway, 55 Iowa, 571; Baird v. Chicago, R. I. & P. R. Co. 55 Iowa, 121; Gadbois v. Chicago, M. & St. P. R. Co. 75 Iowa, 530.

Defendants should not be held for a premature abandonment, or for failing to give "instructions" at or after the time the bandages were removed, unless specially so pleaded.

Bemus v. Howard, 3 Watts, 257.

The law requires physicians to apply proper remedies and excuses them if these fail. Almond v. Nugent, 34 Iowa, 303.

the usual course pursued by surgeons, which was once or twice renewed by reason of the fact that the patient had not wholly recovered, the plaintiff was finally discharged from treatment by defendants or ceased further to employ or consult them. His leg not being wholly cured became bent and crooked, and finally, after this suit was commenced, it was amputated by other surgeons.

This action is brought to recover for the injuries plaintiff sustained by defendants' neglect and want of skill in the treatment of his broken limb.

The cause was upon the evidence submitted to the jury under instructions of which no complaint is made in this court. A general

No presumption of negligence arises from verdict was had for plaintiff and special findthe fact that a patient does not recover. Haire v. Reese, 7 Phila. 138.

The special findings cover all the evidence Introduced in this case, and absolve the defend ants from negligence; hence judgment should have been entered notwithstanding the general verdict.

O'Donnell v. Hastings, 68 Iowa, 272.

ings in response to questions propounded by the court were returned by the jury. They are in the following language:

1. Did the defendants or either of them properly set the plaintiff's leg on December 21, 1885?

A. Yes.

2. Did the said defendants, Jaenicke and