The Chief Justice.
The Court of Errors and Appeals having affirmed the judgment of this court upon the demurrer to the defendant’s rejoinder, under the plea of the statute of limitations, that judgment is final, and concludes the rights of the parties, both in that court and this.
The parties do not now stand in the position they would have done, had the application to amend been made immediately upon the rendry of the judgment in this court. The [104]*104judgment of the Court of Errors having intervened, this court has no power to permit an amendment of the pleadings, even with the consent of the attorney of the defendant.
The judgment of the Court of Appeals upon the affirmance was, and of necessity must have been, “ that the defendant go thereof without day.” The clerical error in the entry of the judgment must be disregarded. The judgment was final, and conclusive upon the rights of the parties.. This court has no power to vacate that judgment, or to treat it as a nullity.
The right of the plaintiff to amend, was, upon the argument, based entirely upon the consent of the defendant’s attorney contained in the written agreement of the 10th of January, 1848. That agreement, it is insisted, was a valid contract between the attorneys, founded upon good consideration, and made for the mutual benefit of the parties; that it is therefore a contract which is legally binding upon the parties, and which, at any rate, this court ought not to permit to be violated to the prejudice of either party.
Justice requires that agreements fairly made between attorneys or parties in the progress of a cause, relating to the conduct of the suit, should be fairly and faithfully enforced, not because they are technically contracts, and legally binding upon the parties, but because the administration of justice is thereby facilitated.
An agreement to waive an irregularity, to postpone or delay a trial, to take short notice of argument, to permit a cause to be brought to hearing summarily, these, and arrangements like them, do not partake of the essence of legal contracts. They are founded upon no consideration, they require no mutuality, if violated no action lies for their breach. The court may refuse to.enforce them, unless reduced to writing and filed, or they may enforce them, in whole or in part, at their discretion. In short, they are regarded as a part of the machinery for the conduct of the cause entirely under the control of the court, and they will be enforced, or not, as the substantial rights of the parties and the ends of justice may require. And, undoubtedly, in the exercise of this discretion, courts will see that if a mutual agreement be made or a consent be [105]*105given, or a waiver of right be made upon one side, in consideration of a consent or a waiver of right upon the other, that, it shall not he partially enforced, to the prejudice of the rights of either. This, it is insisted, is the case with the contract between the counsel in this cause, that it has been partially performed, and must now be performed in full. But is this so ?
What are the stipulations of this agreement? That writs of error shall be forthwith brought in two, of thirty-three cases, from the judgments of this court; that all necessary papers should be filed out of time; that the causes should be set down for argument at the ensuing term of the Court of Errors (within ten days from the date of the agreement); that all irregularities in the steps taken to effect this purpose should be waived ; that the same judgment entered in the case of Thomas Hale should be entered in one other cause similarly circumstanced, and that the judgment in the case of Howe should be entered in thirty-one other cases similarly circumstanced to it. In case judgment be reversed, that the defendant have leave to amend his plea, but not to file a new plea, and if the judgment be affirmed, the plaintiff be at liberty to traverse the defendant’s plea in an issue of fact.
At the time of signing this agreement, the defendant was in the possession of the final judgment of this court in thirty-three causes. The defendant’s counsel thereupon agrees that writs of error shall be forthwith brought, and set down for argument ; that every irregularity shall be waived ; that all delay shall be obviated ; that every obstacle shall be removed from the path of the plaintiff, and every facility afforded him in procuring a reversal, and, finally, that if the plaintiff in error fail in procuring a reversal of the judgments in this court by the judgment of the Court of Errors, the defendant consents that these judgments be vacated, and the litigation commenced anew. The only clause in the agreement which, even in appearance, favors the defendant, is, that in case of a reversal the defendant shall be at liberty to amend his plea, but not to plead anew. Upon any construction of this clause, it gave the plaintiff simply what the court would have granted much as a mere matter of course, and upon the construction contended [106]*106for by the plaintiff; it was not a concession, but a limitation of the defendant’s right. It restrained him even from asking leave to plead anew.
I see, therefore, no mutuality in the agreement; it is wholly in favor of the plaintiff. It is an agreement which, independent of the last clause, under the circumstances of the cage, considering the position of the cause and the immense interest at stake, considerate counsel would have hesitated to enter into without the express assent of his client, and which, including ■that clause, no counsel, with a full understanding of his client’s ■rights and of the character and effect of the agreement, and acting in good faith, ever would have made.
. The stipulation to waive the judgment of this court, affirmed in the Court of Errors, was not an agreement for the conduct of the cause : it was'a deliberate surrender of his client’s rights, a surrender which I conceive the counsel had no power to make, and which, if he had the power, justice would never permit to be enforced. Disregarding the oath of the counsel, by whom ■ this agreement was made, as to the design of the agreement, and the understanding upon which it was entered into; looking solely at the agreement itself, and the circumstances under' which it was made, it seems' to me impossible to escape the dilemma forcibly propounded to the court by that learned counsel upon the argument. Either the agreement must have been entered into by the counsel of the defendant, under some misapprehension of its character, in which event it is not his agreement, or it must have been founded upon some corrupt consideration, in whieh event it is utterly void. The high character of the counsel, upon both sides, forbids all imputation of fraud or corruption. The alternative remains, that the agreement was entered into under some mistake or misapprehension, and ought not to be enforced by the court. I think, therefore, admitting the power of the court now to give effect to the agreement, and the power of the attorney to enter into it, a due regard to justice and the rights of the parties forbid that it' should be enforced.
There is one aspect of this case in which it may be suggested, that, by possibility, the rights of the plaintiff may be [107]*107prejudiced by this view of the effect of the agreement.
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The Chief Justice.
The Court of Errors and Appeals having affirmed the judgment of this court upon the demurrer to the defendant’s rejoinder, under the plea of the statute of limitations, that judgment is final, and concludes the rights of the parties, both in that court and this.
The parties do not now stand in the position they would have done, had the application to amend been made immediately upon the rendry of the judgment in this court. The [104]*104judgment of the Court of Errors having intervened, this court has no power to permit an amendment of the pleadings, even with the consent of the attorney of the defendant.
The judgment of the Court of Appeals upon the affirmance was, and of necessity must have been, “ that the defendant go thereof without day.” The clerical error in the entry of the judgment must be disregarded. The judgment was final, and conclusive upon the rights of the parties.. This court has no power to vacate that judgment, or to treat it as a nullity.
The right of the plaintiff to amend, was, upon the argument, based entirely upon the consent of the defendant’s attorney contained in the written agreement of the 10th of January, 1848. That agreement, it is insisted, was a valid contract between the attorneys, founded upon good consideration, and made for the mutual benefit of the parties; that it is therefore a contract which is legally binding upon the parties, and which, at any rate, this court ought not to permit to be violated to the prejudice of either party.
Justice requires that agreements fairly made between attorneys or parties in the progress of a cause, relating to the conduct of the suit, should be fairly and faithfully enforced, not because they are technically contracts, and legally binding upon the parties, but because the administration of justice is thereby facilitated.
An agreement to waive an irregularity, to postpone or delay a trial, to take short notice of argument, to permit a cause to be brought to hearing summarily, these, and arrangements like them, do not partake of the essence of legal contracts. They are founded upon no consideration, they require no mutuality, if violated no action lies for their breach. The court may refuse to.enforce them, unless reduced to writing and filed, or they may enforce them, in whole or in part, at their discretion. In short, they are regarded as a part of the machinery for the conduct of the cause entirely under the control of the court, and they will be enforced, or not, as the substantial rights of the parties and the ends of justice may require. And, undoubtedly, in the exercise of this discretion, courts will see that if a mutual agreement be made or a consent be [105]*105given, or a waiver of right be made upon one side, in consideration of a consent or a waiver of right upon the other, that, it shall not he partially enforced, to the prejudice of the rights of either. This, it is insisted, is the case with the contract between the counsel in this cause, that it has been partially performed, and must now be performed in full. But is this so ?
What are the stipulations of this agreement? That writs of error shall be forthwith brought in two, of thirty-three cases, from the judgments of this court; that all necessary papers should be filed out of time; that the causes should be set down for argument at the ensuing term of the Court of Errors (within ten days from the date of the agreement); that all irregularities in the steps taken to effect this purpose should be waived ; that the same judgment entered in the case of Thomas Hale should be entered in one other cause similarly circumstanced, and that the judgment in the case of Howe should be entered in thirty-one other cases similarly circumstanced to it. In case judgment be reversed, that the defendant have leave to amend his plea, but not to file a new plea, and if the judgment be affirmed, the plaintiff be at liberty to traverse the defendant’s plea in an issue of fact.
At the time of signing this agreement, the defendant was in the possession of the final judgment of this court in thirty-three causes. The defendant’s counsel thereupon agrees that writs of error shall be forthwith brought, and set down for argument ; that every irregularity shall be waived ; that all delay shall be obviated ; that every obstacle shall be removed from the path of the plaintiff, and every facility afforded him in procuring a reversal, and, finally, that if the plaintiff in error fail in procuring a reversal of the judgments in this court by the judgment of the Court of Errors, the defendant consents that these judgments be vacated, and the litigation commenced anew. The only clause in the agreement which, even in appearance, favors the defendant, is, that in case of a reversal the defendant shall be at liberty to amend his plea, but not to plead anew. Upon any construction of this clause, it gave the plaintiff simply what the court would have granted much as a mere matter of course, and upon the construction contended [106]*106for by the plaintiff; it was not a concession, but a limitation of the defendant’s right. It restrained him even from asking leave to plead anew.
I see, therefore, no mutuality in the agreement; it is wholly in favor of the plaintiff. It is an agreement which, independent of the last clause, under the circumstances of the cage, considering the position of the cause and the immense interest at stake, considerate counsel would have hesitated to enter into without the express assent of his client, and which, including ■that clause, no counsel, with a full understanding of his client’s ■rights and of the character and effect of the agreement, and acting in good faith, ever would have made.
. The stipulation to waive the judgment of this court, affirmed in the Court of Errors, was not an agreement for the conduct of the cause : it was'a deliberate surrender of his client’s rights, a surrender which I conceive the counsel had no power to make, and which, if he had the power, justice would never permit to be enforced. Disregarding the oath of the counsel, by whom ■ this agreement was made, as to the design of the agreement, and the understanding upon which it was entered into; looking solely at the agreement itself, and the circumstances under' which it was made, it seems' to me impossible to escape the dilemma forcibly propounded to the court by that learned counsel upon the argument. Either the agreement must have been entered into by the counsel of the defendant, under some misapprehension of its character, in which event it is not his agreement, or it must have been founded upon some corrupt consideration, in whieh event it is utterly void. The high character of the counsel, upon both sides, forbids all imputation of fraud or corruption. The alternative remains, that the agreement was entered into under some mistake or misapprehension, and ought not to be enforced by the court. I think, therefore, admitting the power of the court now to give effect to the agreement, and the power of the attorney to enter into it, a due regard to justice and the rights of the parties forbid that it' should be enforced.
There is one aspect of this case in which it may be suggested, that, by possibility, the rights of the plaintiff may be [107]*107prejudiced by this view of the effect of the agreement. It may be said, that if this agreement had not been entered into, and the consent to amend after the affirmance, been given, that the plaintiff would have abandoned his writs of error, and moved for leave to withdraw his demurrer and to surrejoin, to which motion he would then clearly have been entitled. No such intimation has been made, nor is it at all probable, from the character of the pleadings, that sneh course would, under any circumstances, have been taken, because thereby the material question upon which the rights of the parties depended would have been left wholly unsettled. Still, it is a possible contingency, and in that event, however difficult or impossible it might he for this court to afford relief, substantial justice would seem to require that the plaintiff should not he prejudiced by the agreement, and that he should be permitted to amend his pleadings.
As the interests at stake in these causes are great, and as it is in every view desirable that they should be settled upon the broadest ground of right and justice, it may not be improper, conceding that the view already expressed be erroneous, to consider the character of the pleading and the nature of the issue sought to be made by this surrejoinder.
The plea was the statute of limitations, to which there was a replication, rejoinder, and demurrer. The question presented by the demurrer, upon which judgment has been rendered, was, whether the provision of the act of 1820 (Rev. Laws, 670), that the statute of limitations should not run against the plaintiff' while the defendant was absent from the state, operated only in favor of creditors or plaintiffs who reside here or whose cause of action accrued within this state, or whether it extended, also, to causes of action which arose without the jurisdiction of the state, and operated in favor of non-resident plaintiffs. That was the point presented by the pleadings, argued by the counsel, and decided by the court. It was the same point that was decided in Beardsley v. Souhtmayd, 3 Green 171, and subsequently reaffirmed in Taberrer v. Brentnall, 3 Harr. 262. The replication, in terms, avers that the trespasses were committed in the state of New York, and [108]*108out of and beyond the jurisdiction of this state; and when the several causes of action accrued, and for a long time thereafter, as well the' plaintiffs as the defendants were not residents in this state, but resided in the state of New York, or some other of the states of the United States of America. The material averment of the pleading is, that the causes of action arose without the jurisdiction of this state, and that the parties, plaintiff and defendant, were non-residents of this state. The surrejoinder now filed by the defendant, without traversing either of these material averments, simply avers, that at the time the causes of action accrued, and afterwards, both the plaintiff and the defendant did not reside in the state of New York, nor did they both reside in any other and the same state of the United States of America; thus seeking to raise the issue, not whether the parties were or were not residents of this state, but the totally irrelevant and immaterial issue, whether they resided in New York or Connecticut, or whether they both .resided in the same state or in different ¿tates. Either issue is alike immaterial and irrelevant. But it is said that the defendant made the matter material by the form of his rejoinder, thereby averring that the parties both lived in the same state. True, but does every averment in a plea make the matter material ? If so, there can be nothing superfluous in pleading. Every averment becomes material and issuable, whereas many averments are neither material nor issuable. There is an averment in this rejoinder, that the trespass was committed in New York, and that the parties resided in some one of the United States, but would it therefore be competent for the plaintiff to answer that the trespass was committed not in New York, but in Connecticut, or that the parties resided not in any one state of the United States, but in the District of Columbia, the territory of Iowa, or the island óf Cuba? The case is too plain to'admit of argument. The averments are neither traversable nor material.
The surrejoinder is utterly frivolous, and we should feel constrained upon this ground, independent of all others, to order it to be stricken out.
The surrejoinder must be stricken out, the rule of this court [109]*109allowing the surrejoinder to be filed, must also be vacated and set aside, as improvidently entered.
Inasmuch, however, as the difficulty has been induced by the act of the defendant’s counsel, the rule is ordered without costs, each party to pay his own costs. As the amended pleas in the cause were filed under a misapprehension, the defendant has leave to withdraw them.
Let a rule be entered vacating the rule of October term, 1848, and striking the surrejoinder from the files, but without costs, the amended pleadings to be withdrawn ; all other proceedings in this cause, if any there be since the entry of the remittitur, to be stricken out, and the judgment of this court, as affirmed in the Court of Appeals, to stand in all things ratified and confirmed.
Let the same rules be also entered in the thirty-one other cases similarly circumstanced.