performance at the same time demanded; the practice of the court requiring that all necessary steps for obtaining an attachment shall be taken at the same time,-Rogers v. Twisdel, 3 Dowl. P. C. 572; Doe d. Sturges v. Ward, 2 Dowl. N. S. 706; The King v. Smithies, 3 T. R. 351; Dodington v. Hudson, 1 Bingh. 410, 8 J. B. Moore, 510 (E. C. L. R. vol. 17); Swinfen v. Swinfen, 18 C. B. 485 (E. C. L. R. vol. 86). *2. That a proper deed should have been tendered to the [*388 plaintiff at the time of the service, for her execution; that the deed then tendered was in many respects objectionable, and one she was not bound to execute; and that the defects were not cured by the deed subsequently prepared,-Tebbutt v. Ambler, 2 Dowl. N. S. 677; Doe d. Williams v. Howell, 5 Exch. 299;† Vonhollen v. Knowles, 12 M. & W. 602;† Manning v. Bailey, 2 Exch. 45.†

3. That the rule of court was too loose and indefinite to warrant an attachment, even supposing it to be valid as an agreement; that it did not order any specific act to be done by the plaintiff, or provide how the deed was to be settled in case of difference, or order the plaintiff to deliver up possession of the house and grounds, or identify the land she was to occupy until Michaelmas, or dispose of the Chancery suit or of the process in Doctors' Commons,-Doe d. The Earl of Cardigan v. Bywater, 7 C. B. 794 (E. C. L. R. vol. 62).

4. That the agreement on which the rule of court is founded, was made on the trial of an issue directed by the Court of Chancery, and therefore the obviously more convenient course would be to leave the defendant to apply to that court to enforce it; especially as there were other questions pending in the equity suit,-8 & 9 Vict. c. 109, s. 19; Luard v. Butcher, 2 C. B. 858 (E. C. L. R. vol. 52), 3 D. & L. 815.

5. That the rule of court is founded upon the agreement; and that the court had no jurisdiction to set aside the agreement if invalid, and therefore ought not to give itself jurisdiction by deciding in a summary manner that the agreement was valid.

6. That, if the rule gave the court jurisdiction, it was one which they might properly decline to exercise in a summary manner, inasmuch as they would thereby preclude the plaintiff from taking the opinion of a jury as to the facts, and of a court of error as to the law,-Thomas v. Hewes, 2 C. & M. 519 (E. C. L. R. vol. 52); and that it is only in *plain cases that an attachment is granted,-Bodington v. Harris, 1 Bing. 187 (E. C. L. R. vol. 8).

[*389

7. That, although counsel are in the first instance to consider and decide whether or not they have sufficient authority to refer a cause upon terms, yet such decision is not conclusive upon the client, who may (if he can) negative such authority.

8. That, although the court will, in the absence of proof to the contrary, infer that counsel had sufficient authority to refer a cause upon terms, yet such inference may be rebutted by evidence, and no such

inference will be drawn in the face of sufficient proof to the contrary, -Mole v. Smith, 1 Jac. & W. 673; Furnival v. Bogle, 4 Russ. 142; In re Hobler, 8 Beavan, 101; Welch v. Nash, 8 East, 394; Thompson v. Ingham, 1 L. M. & P. 216; In re Chew v. Holroyd, 8 Exch. 249 ;† Bunbury v. Fuller, 9 Exch. 111, 140.†

9. That the power of counsel to compromise a cause does not stand upon the same footing as the power of counsel to refer a cause upon terms; and that the court will not infer a power to make a disadvantageous compromise, but the authority of the client must be proved,-see the cases refered to by Mr. Kennedy, antè, p. 381.

10. That the reservation of future power to counsel, contained in the agreement, made it bad in toto; and that, at all events, the court would not infer an authority to that extent,-Roll. Rep. 214; Watson on Awards, 104; Thinne v. Rigby, Cro. Jac. 315; Winch v. Sanders, Cro. Jac. 584; In re Tandy and Tandy, 9 Dowl. P. C. 1044.

11. That upon the affidavits, it clearly appears that the plaintiff never authorized the compromise, but, on the contrary, expressly and distinctly objected to it, and has never in any manner ratified it; that Simpson, her attorney, had no authority from her to make or sanction any such compromise; and that the want of such *authority in Simpson *390] was well known to the counsel when they took upon themselves the responsibility of making it.

12. That, inasmuch as the case involves a serious question of law, viz. as to the extent of the power of counsel to bind their clients by a compromise, and also a serious question of fact, viz. whether Simpson did, in violation of his duty to his client, and in spite of her express direction to the contrary, authorize or sanction the alleged compromise,-the court ought not to determine those questions in a summary manner (and in the absence of Simpson, who was no party to the rule), and so deprive the plaintiff of her right to take the opinion of a court of error; but should leave the defendant to enforce the alleged agreement by action, or by a bill in equity for a specific performance.

Whateley, Q. C., Keating, Q. C., and E. James, Q. C., in support of the rule. The main question is as to the extent of counsel's authority to enter into a compromise of this sort on behalf of the client, in his absence. That the counsel in this particular case acted with good faith, and exercised a sound discretion, there can be no doubt. The concession on the other side as to the extent to which counsel in the conduct of a cause may bind the client, is ample enough to embrace this case. Circumstanced as the case was at the time the compromise was agreed to, the counsel would have been wanting in duty to their client if they had abstained from doing as they did. The client being absent, the hearing of the cause about to be resumed, the counsel are informed by the attorney that a circumstance has just come to his knowledge which makes it highly expedient that the matter should be compro

mised. What that matter was, does not appear. It may be that Mr. Simpson had employed his London agent, shortly before he received instructions to prepare the will in question, to take proceedings with *a view to a commission of lunacy against the testator, and he

had ascertained that the defendant's counsel were in possession [*391

of proof of that fact; and so he might think it expedient, for the sake of his client's character and his own, to withdraw from the contest upon the best terms which could be obtained. The question depends more upon principle than upon authority; but authority is not wanting. Mole v. Smith, 1 Jac. & W. 673, contains an intimation of opinion from a very eminent lawyer. "It is for Mr. Shadwell to consider," says Lord Eldon, "whether he is authorized to give his consent for the widow. If he does I must act upon it; and she will be bound by it." So, in Furnival v. Bogle, 4 Russ. 142, it is distinctly laid down that a party is bound by the consent of his counsel given in court, though they had no instructions to consent, if they were at the time apprised of all those facts of which the knowledge was essential to the proper exercise of their discretion. Can it be said in the present case that there was any fact the knowledge of which was essential to the exercise of their discretion, of which the plaintiff's counsel were ignorant? If Mrs. Swinfen had disapproved of the arrangement, she should at once have repudiated it. Instead of adopting that course, though the arrangement was made on the 15th of March, it was not until the 1st of April that any intimation was given to the defendant that she disapproved of it. The observations of Lord Lyndhurst, in Furnival v. Bogle, 4 Russ. 146, are extremely strong upon the point. He says: "I must consider the case as if Mr. Furnival's solicitor, Mr. K., had been in court, and assented to the order. His clerk was in court when Mr. Sugden made the proposition. Some communication took place between Mr. Heald and him. He did not object to the arrangement; and I must presume that he immediately communicated what had occurred to his principal, K. It was the duty of the solicitor, if [*392 he dissented from the order, to have given immediate notice of his objection. Saturday and Monday elapsed: on the Tuesday morning, a new solicitor is appointed, and then, for the first time, an objection is made to the order. If Mr. K. had been in court, and had assented to the arrangement, it would have bound his client. He has adopted it; for, it was communicated to him, and he did not object to it. The client must therefore be bound." The cases of Thomas v. Hewes, 2 C. & M. 519,† 4 Tyrwh. 335, and Hargrave v. Hargrave, 12 Beavan, 408, have very little bearing upon the present question. In the former, Bayley, B., expressly guards himself against laying down any rule as to the extent of the authority of attorneys and counsel: and the latter, so far as it goes, is rather an authority for the defendant. The court must always bear in mind that the defendant will be seriously prejuN. S., VOL. I.-18

diced by the withdrawal of the arrangement. He had no means of knowing that the authority of the plaintiff's counsel to enter into it would be questioned; and he has incurred heavy expense upon the faith of it. It has been said that this court has no jurisdiction, because the issue was directed by the Master of the Rolls: but the complaint is, that a rule of this court has been disobeyed; and clearly no other court could enforce it by attachment. [WILLIAMS, J.-If this was an order of Nisi Prius, it might properly be made a rule of this court. CROWDER, J.-Can two litigant parties at any time consent to an order of Nisi Prius?] It is submitted that they can. Submissions to reference are commonly made rules of court. [CRESSWELL, J.-By authority of the statute 9 & 10 W. 3, c. 15. WILLIAMS, J.-In the case of a reference, the court performs its functions.] As to the service of the rule, there is no foundation for the objection urged. The service was in strict conformity with the practice of the court. A sufficient deed, it is submitted also, was tendered for execution. And, a tall *events, it *393] is not open to the plaintiff to make that objection, she and her attorney having positively refused to execute any deed. Neither is there any foundation for the objection that the order of Nisi Prius is too vague. It sets out the agreement, which upon the face of it purports to be a valid agreement, and one which the court will enforce. It was not for the defendant to prove the plaintiff's assent to or ratification of the agreement: it was incumbent on the plaintiff to show that she dissented, and that she communicated her dissent promptly: Elworthy v. Bird, Tamlin, 38; Furnival v. Bogle, 4 Russ. 146. If Simpson acted without authority,—and that he assented to the arrangement, is clear from all the affidavits,-the plaintiff may have a remedy against him; but still the agreement must stand. The business of the courts could not proceed, if, after counsel has acted upon the faith of his attorney having authority, the want of such authority should be held to annul any act done by him in court. Upon the whole, it is submitted that no sufficient reason has been urged against the propriety of enforcing this rule in the usual way. Cur. adv. vult.

CROWDER, J.-This was a motion for an attachment against the plaintiff for contempt in disobeying a rule of court. A rule nisi having been granted, cause was shown against it at the latter end of last Term, and on two successive days after Term. The case was argued before us at very great length, and the court took time to consider its judgment.

As I have the misfortune to differ from the opinion expressed by my learned Brothers when the former rule was discharged, and to which opinion they still adhere, I cannot but entertain serious doubts of the correctness of my own judgment. Nevertheless, I feel it to be my *394] *duty to the litigant parties to deliver my opinion, together with the reasons on which it is founded.

Many points were made on behalf of the plaintiff in the course of the argument. But, as my opinion is in her favour upon the main point, it becomes unnecessary to pronounce any judgment upon the others.

The attachment is prayed against the plaintiff for not performing an agreement embodied in an order of Nisi Prius which has since been made a rule of this court. It seems to me that there is no sufficient proof of a valid agreement between the plaintiff and defendant to warrant the order of Nisi Prius, and that therefore the rule of court founded upon it cannot be enforced by attachment.

The order of Nisi Prius was made upon the trial of an issue directed by the Master of the Rolls, to try the validity of a will under which the plaintiff was devisee of an estate estimated by her of the value of 65,000.; the defendant being the heir-at-law. The cause came on for trial at Stafford, on Saturday, the 15th of March, before my Brother Cresswell; and, after the examination of several witnesses on the part of the plaintiff, it was adjourned to the following Monday. On Monday morning negotiations took place in court, and an agreement was finally signed by the leading counsel on both sides, in the following words :"Juror to be withdrawn. Estate to be conveyed by plaintiff at law to defendant in fee, free of encumbrances, if any, created since the death of Samuel Swinfen: such conveyance to date from Michaelmas, 1855. Defendant to secure to plaintiff an annuity for life on the estate of 10007. a year, inclusive of the 3007. a year already secured to her on the estate, also to date from Michaelmas, 1855. If any charge is existing on the estate, created prior to the death of Samuel Swinfen, the interest to be borne in equal moieties. Plaintiff's costs as between attorney *and client, not exceeding 1250l., to be paid by defend[*395 ant. Power to either party to make this agreement a rule of court. In the event of any question arising on the above terms, the same to be referred to Sir F. Thesiger and the Attorney-General. The house and grounds to be occupied by the plaintiff, without payment of rent, till Michaelmas next." A juror was then withdrawn, and the cause terminated.

The plaintiff contends that this agreement was entered into by her counsel, Sir F. Thesiger, without her authority, and contrary to her instructions; and she refuses to perform it.

The defendant contends,-first, that Sir F. Thesiger had a special authority to make it on behalf of his client,-secondly, that, even if he had no special prior authority, the plaintiff subsequently ratified the agreement, thirdly, that, independently of any special prior authority or subsequent ratification, Sir F. Thesiger had an implied general authority, arising from his position as counsel in the cause, to bind his client by that agreement.

After the fullest consideration of the affidavits, and of the arguments on both sides, I have not been able to satisfy my mind that the agree