I had made a memorandum to this effect in writing, which, to the best of my recollection and belief, I then gave to Sir F. Thesiger, and he read it in my presence, and left for the purpose of speaking to the AttorneyGeneral. I did not see Sir *F. Thesiger again, nor did I know [*372 what steps had been taken, until the counsel met in court at 9 o'clock. They began immediately to correspond and confer in court in the presence of the judge and jury, and also went out of court apparently for that purpose. Sir F. Thesiger, in the course of a short time, informed me that the defendant, who was in court, and the AttorneyGeneral, expressed their willingness to abide by their former offer, and to give a sum of money for the costs; to which I stated my positive dissent. The conference was still proceeding; and I reminded Sir F. Thesiger that I had no authority to negotiate any compromise for my client; to which Sir F. Thesiger replied, that he would take all the responsibility on himself jointly with his colleagues. Refusing to have any concern in the affair, I left the court, and after a short time was sent for by Sir F. Thesiger, who was then in conversation with the Attorney-General; and the latter put a question to me respecting the Swinfen estate, which I answered. Soon afterwards, I received a written request from Mrs. C. Swinfen, who was in attendance as a witness, to speak to her in the hall of the court-house. I went to her; and both she and her husband most earnestly requested me to put a stop, if possible, to the proposed agreement, and said that they were quite sure Mrs. Swinfen would repudiate it, and refuse to submit to it. I then returned to Sir F. Thesiger; and, as Mrs. Swinfen was expected every minute, I requested him to wait for her arrival; but he did not comply with my request; and a juror was withdrawn a few minutes before her arrival. The conference between the respective leading counsel continued nearly an hour and a half, from the beginning to the conclusion." "I do not know whether the agreement was drawn up and signed before or after a juror was withdrawn. I was not asked to peruse it. My attention was directed to the alienation of the estate, and my objection was to that condition. I particularly urged to Sir F. Thesiger [*373 that he was making a mere commercial bargain, and therefore I could not act as Mrs. Swinfen's attorney on such a basis. I distinctly understood that he admitted this. I left the court soon after Sir F. Thesiger, and found Mrs. Swinfen in the ante-room. She was in great distress, and reprobated the transaction, in the presence of her witnesses and many other persons."

Sir Henry Durrant's affidavit was in substance as follows:-"I was present at the trial of the above-named cause on Saturday, the 15th of March." "Soon after the adjournment of the court, I went, at the request of Mr. Cole, to Sir F. Thesiger's lodgings, when I found the plaintiff with Sir F. Thesiger and some other counsel. The plaintiff asked Sir F. Thesiger to repeat to me what he had said to her. He then

stated that the Attorney-General had offered to give her 10007. a year and the costs of the trial, if she would relinquish the estate to Captain Swinfen, the defendant. He said also that the case was going against the plaintiff." "I made no answer to Sir F. Thesiger, but looked at the plaintiff, and said to her, 'This requires a little time for consideration.' I said so, thinking it advisable that we should talk over the matter by ourselves. I returned with the plaintiff that evening to Swinfen Hall. We talked about the proposed compromise. She made up her mind instantly to reject it; and I entirely concurred with her. The next morning, Mr. Simpson, her attorney, came to Swinfen Hall. I was present at his interview with the plaintiff. She declared her resolution to reject the offer of the Attorney-General, and desired her attorney to convey her answer to Sir F. Thesiger. She said that she would stand or fall by the will, or words to that effect: and I said that I approved of her resolution. On the Monday morning, I went with the plaintiff to Stafford, in order to attend the trial. On arriving at the Stafford station, we were informed that we must make haste to the court, as there was a negotiation going on between the counsel. The *374] plaintiff and myself were both greatly surprised, as we had not the least suspicion that such a thing would be done. We hastened to the court-house; and, upon entering the ante-room, through which the witnesses have to pass into the court, we met Sir F. Thesiger, who accosted us and said that he had done his best, and compromised the case. I asked him directly by whose authority he had done so; and Sir F. Thesiger, looking at me with some confusion of manner, said, 'By yours.' I replied instantly, 'The deuce you did!' and was proceeding to say more, but Sir F. Thesiger walked quickly away. The statement of Sir F. Thesiger, that he acted by my authority, is wholly untrue. I never assumed to give any authority upon the subject; nor had I any authority from the plaintiff so to do."

CRESSWELL, J.--The affidavits having now been used, we think the defendant should be allowed to file affidavits in answer.

Whateley.—The affidavits which, if the court see no objection to that course, it is proposed to put in, are those of Sir F. Thesiger, Mr. Alexander, Q. C., Mr. Whitmore, Q. C., and Mr. Gray, who were the counsel for the plaintiff at the trial, detailing what took place there so far as they were concerned

CRESSWELL, J.-I am of opinion that there is no legal objection to the reception of the affidavits proposed. The court cannot take upon themselves to give any opinion as to the propriety of counsel making affidavits. (a) Every gentleman is the best guardian of his own honour, and the best able to decide for himself whether or not it is fitting for him to make an affidavit. It is not a question of *professional confi*375] dence; but the question is, what was the authority given. we can say is, that the affidavits may be filed.

All

(a) Such an affidavit was made in Elworthy v. Bird, Tamlin, 38.

WILLIAMS, J.-The only question that can be put to us is a question of law: and, as a matter of law, there clearly is no objection to the affidavits proposed.

The affidavit of Sir F. Thesiger was to the following effect:-"I was the leading counsel engaged on the part of the plaintiff in the matter of an issue directed by the Court of Chancery to try the validity of the will of Samuel Swinfen, deceased, and which issue came on for trial at the Spring Assizes at Stafford in the present year. I have read a copy of an affidavit made in this matter by Charles Simpson, the plaintiff's attorney, sworn the day of November instant, which professes to give an account of what took place at the trial with reference to a compromise between the parties which was then effected under my advice and through my instrumentality, but which in many respects is entirely contrary to my recollection of the circumstances. At the close of the first day of the trial, I had reason to believe that the plaintiff was in some danger of an adverse verdict; and I desired Mr. Simpson to bring her to my lodgings, requesting Mr. Alexander and Mr. Whitmore, the other counsel who were with me in the cause, to attend. I pointed out to the plaintiff the consequences of a defeat, and the desirableness of coming to some arrangement. I did not say that the Attorney-General, who was employed by the defendant, had offered an annuity of 10007.; no such offer having been made by him: but, upon the plaintiff asking me what sort of an arrangement was contemplated, either I or the other counsel suggested the sum of 1000l. per annum as an amount which we all agreed in thinking would be reasonable. *The plaintiff said she would do nothing without her friend [*376 Sir Henry Durrant, under whose advice she had been acting: and, finding that he was in Stafford, I desired him to be sent for, and we repeated in his presence all that we had previously stated to the plaintiff. We separated that evening upon an understanding that they were to consider the suggestions which we had made, and communicate by telegraph the next day, being Sunday, whether (as I supposed) the counsel were to be at liberty to negotiate with the other side for an arrrangement. In the afternoon of Sunday, I received a communication by telegraph in these terms The offer is refused.' Mr. Whitmore and myself thought that the message did not exactly meet the case, as no offer had been made; but I believe we were all convinced. that the idea of an arrangement must be abandoned, and we were prepared to proceed with the trial on the following day. On the Monday morning, Mr. Simpson came with Mr. Cole (his London agent) to my lodgings. Mr. Simpson in his affidavit states that he did so at my request. I have no recollection of my having requested his attendance upon me; and my belief is, that his visit was unexpected. On his coming into my room, Mr. Simpson told me that a circumstance had come to his knowledge which in his judgment made it extremely desir

able that the case should be arranged. Having previously entertained this opinion, I was strongly confirmed in my view that it would be for the interest of the plaintiff, by what Mr. Simpson communicated to me; and I said that I would instantly go to the Attorney-General and offer to take 1000l. a year, which I believed he would be willing to give. I have not the slightest recollection of Mr. Simpson having produced to me any written paper at this interview; and my firm belief is, that no such paper was produced. With the entire acquiescence and sanction

of Mr. Simpson, I proceeded to the *Attorney-General. When

*377] I reached the lodgings of the Attorney-General, it only wanted

a few minutes to the time of the court's assembling, and therefore our communication was very brief: but he at once agreed to the proposal that the plaintiff should receive 1000l. a year, as the basis of the arrangement. In consequence of the haste with which this took place, nothing was agreed upon on the subject of the costs; but, on our arrival in court, Mr. Simpson, having been informed of what had been agreed upon, endeavoured to stipulate for the payment of costs as between attorney and client. I proposed this to the Attorney-General, who objected to leaving the amount of costs indefinite, and suggested the naming of a certain sum. Upon this I inquired of Mr. Simpson, in the presence of Mr. Cole, what would be a proper sum to fix for the costs. He answered 20001. The Attorney-General thought this sum extravagant, and said that the defendant's advisers considered that 10002. would be amply sufficient. I then discussed with Mr. Simpson and Mr. Cole for some time the subject of the costs, and asked him (Simpson) to explain the mode in which he made up the amount. He did not satisfy me that the costs could possibly exceed 1500l., which sum, therefore, with his consent, I agreed to take. The Attorney-General in the meantime had drawn up the heads of the arrangement; and, upon my sending over my proposal to take 1500l., he inserted the sum of 12501. for the costs, as the utmost he was disposed to give on this account. I was pressing Mr. Simpson not to prevent a beneficial arrangement, and one which he had urged me to make, by standing out for 2501., when a friend of the defendant interfered, and induced him (the defendant) to declare his determination not to settle at all. After what I had heard from Mr. Simpson at my lodgings, I was certainly most anxious that the trial should not proceed; and I pressed the Attorney-General with the observation, that, *after we had substantially agreed, it would *378] not be right for him to allow his client to recede. After considerable discussion, he at last said, that, unless I would consent on the part of the plaintiff to the proposed arrangement commencing as from the preceding Michaelmas, the plaintiff receiving an annuity from that time, and the defendant having the rents due at Lady-Day, no settlement could take place, and the trial must proceed. It was also insisted by the Attorney-General that the interest of any charges upon the

estate should be borne equally by the plaintiff and defendant. I found, upon calculation, that the difference between the amount of the rents and of the annuity would not be very great, and I therefore urged on Mr. Simpson the acceptance of these terms. Mr. Simpson certainly more than once at this period of the negotiations requested me to wait till the plaintiff arrived, who, he informed me, was expected in an hour; but I, fearing from the disposition of the defendant, that, if the trial was resumed, all hope of an arrangement was at an end, and considering it of great importance to the plaintiff's interests that this should not occur, especially after Mr. Simpson's impression of the expediency of settling the case had strongly confirmed my own, pressed upon Mr. Simpson to agree before it was too late; and, upon his hesitating, said that I must take it upon myself; to which Mr. Simpson made no objection, but said that I must defend him against his client. I immediately answered that I was willing, with my friends, meaning the counsel who were with me, to take the responsibility on myself: and I then signed the paper which had been drawn up by the AttorneyGeneral, and which contained the final terms of agreement between the parties. It is not true, that, when the plaintiff came to my lodgings, or that at any other time, I told her that the Attorney-General had offered to give her an annuity of 1000l. a year; no such offer had been *made; and that sum was mentioned by myself or the other [*379 counsel, as a suggestion, in the manner previously suggested by me. I did not say that I had had an intimation from high quarters, which I was not at liberty to name, that the case was likely to go against her; nor did I give her or Sir Henry Durrant to understand that I had had a private communication from the judge that the case was going against her. I told her that it appeared to me that the case was going against her, and urged the prudence of an arrangement, to prevent the consequences of an adverse verdict. The plaintiff did not say that she would not accept 1000l. a year, or any other offer: on the contrary, there was a considerable discussion as to terms of compromise; and, when the interview terminated, it was understood that the plaintiff and Sir Henry Durrant would take the whole matter into consideration, and send a decision on the following day. It is not true that I stated to Sir Henry Durrant that the Attorney-General had offered to give the plaintiff 1000l. per annum and the costs of the trial, if she would relinquish the estate to Captain Swinfen. I have already stated the mode in which the sum of 1000l. per annum was introduced into the discussion, and which statement is correct."

The statements contained in the above affidavit were corroborated as to the whole of the facts therein deposed to, by the affidavits of Mr. Alexander, Mr. Whitmore, and Mr. Gray (who were also counsel for the plaintiff at the trial),—the two former gentlemen expressly swear