I the writ of summons was issued was Mersham Hatch, in the county of Kent, which is more than twenty miles distant from the plaintiff's residence, and therefore the plaintiff had a right to resort to the superior Court for the recovery of his demand. therefore think the rule should be made absolute for the allowance of the plaintiff's *costs. As, however, cause is shown in the first instance, the costs of the rule are in our discretion: and I think, under the circumstances, the plaintiff should not have those costs. BYLES, J.: I am of the same opinion. The case of Butler v. Ablewhite underwent much consideration. The decision there proceeded, and in my judgment correctly, upon a literal construction of the statute 9 & 10 Vict. c. 95, s. 128. By the Statute of Gloucester, 6 Edw. I. c. 1, a plaintiff who obtains a verdict is entitled to costs, unless he is deprived of them by some subsequent legislative enactment. The plaintiff contends that the statute 9 & 10 Vict. c. 95, does not deprive him of his right to costs, because he brings himself within the concurrent jurisdiction clause, his residence being distant more than twenty miles from the residence of the defendant at the time of the commencement of the action. If that fact had been suggested upon the roll here, and issue taken upon it, it must have been found for the plaintiff. It seems to me that there is no real distinction in this respect between a plaintiff having two residences, one within and the other beyond the prescribed distance from the defendant's residence, and a defendant having two residences similarly circumstanced as to distance from the plaintiff's place of abode. I therefore think our decision is governed by the authority of one, if not by that of two cases in this Court: Macdougall v. Paterson (1) and Butler v. Ablewhite (2). MONTAGUE SMITH, J.: I am entirely of the same opinion. Rule absolute, without costs. PRESTWICH (OR PRISTWICK) AND ANOTHER v. POLEY (3), (18 C. B. N. S. 806-817; S. C. 34 L. J. C. P. 189; 11 Jur. N. S. 583; 12 L. T. N. S. 390; 13 W. R. 753.) 1. An attorney has a general authority to compromise an action on behalf of his client, provided he act bona fide and reasonably, and not in defiance of the direct and positive instructions of the client. 2. And this authority, it seems, extends to a managing clerk having the general conduct of the business. 3. The plaintiffs employed A., an attorney, to sue B. for the price (1) 87 R. R. 769 (11 C. B. 755). (3) Referred to, Strauss v. Francis (1866) L. R. 1 Q. B. 379, 35 L. J. PRESTWICH ť. POLEY. [*807 ] of a pianoforte sold and delivered. The cause having proceeded as far as the joinder of issue, A. finding B. unable to pay, agreed with him (by his managing clerk), that the plaintiffs should take back the pianoforte, and that the costs should be paid by certain instalments. The plaintiffs, on being informed of this arrangement, repudiated it, and A. gave notice of trial: Held, upon a motion to stay the proceedings on the ground that the action was settled, that this compromise was within the general scope of the attorney's authority, and binding as between the plaintiffs and B. 4. Whether it would have been competent to the attorney to accept any other goods in satisfaction of his client's claim,-quære? THIS was an action brought to recover the sum of 381., the price of a pianoforte sold and delivered by the plaintiffs to the defendant. The cause being at issue, and notice of trial having been given, the defendant's attorney called at the office of the plaintiff's attorney, and proposed to settle the action by returning the pianoforte and paying an agreed sum for costs; and ultimately the following terms were settled and reduced into writing, and signed by Swann, the managing clerk of the plaintiffs' attorney, and by the defendant's attorneys: "LONDON, 6th April, 1865. "Prestwich and another v. Poley. "This matter has been settled upon the following terms: Piano to be given up in full discharge of the debt in this action, and costs, agreed at 97., to be paid by the following instalments, 51. to-morrow, and balance in a month from that date. "THOMAS ANGELL, plaintiffs' attorney. "PIKE & SON, defendant's attorneys." An appointment was afterwards made for the plaintiffs to attend at the defendant's house on the following day to take away the pianoforte, and the defendant's attorneys sent Mr. Angell a cheque for 51. on account of the costs. On the following day, April 7th, the plaintiffs' attorney, by his managing clerk, Swann, wrote to the defendant's attorneys: "My clients do not seem inclined to accept the terms proposed by *you; " and on the 8th the cheque was returned, and notice of trial given. On the 24th of April, application was made to Keating, J., at chambers, for an order to stay the proceedings in the action, on the ground that the matter had been settled. The learned Judge thought the agreement ought to bind the parties; but, pressed by the case of Swinfen v. Swinfen, he declined to make the order, but without prejudice to an application to the Court. Q. B. 133, 14 L. T. 326; Neale v. [1903] 1 Ch. 812, 72 L. J. Ch. 356, 88 L. T. 264; Little v. Spreadbury [1910] 2 K. B. 658, 79 L. J. K. B. 1119, 102 L. T. 829. POLEY. Needham, accordingly, on a former day in this Term, PRESTWICH obtained a rule nisi to the same effect. The affidavit upon which the motion was founded, after setting out the above facts, proceeded to allege that "Swann is the managing clerk of the said Thomas Angell, and is a thoroughly competent and shrewd man," and further that he was in the habit of transacting business for him as if he were principal. Prentice now showed cause, upon a joint affidavit by Angell and Swann, the latter of whom deposed, that, upon Angell opening the letter inclosing the 51. cheque, he informed him (Swann) that he had done wrong in giving the above memorandum to the defendant's attorneys, as the plaintiffs had declined to accept the return of the pianoforte, as proposed; and the former deposed that he had not at the time mentioned, nor had he at any time had, the authority of the plaintiffs to settle the action upon the terms stated, or upon any other terms than the payment of the debt and costs in the action. The attorney was employed to take proceedings in the ordinary way to recover the price of the pianoforte, not to make an arrangement for its return. That an attorney has no right to compromise a suit, was decided by the MASTER OF THE ROLLS *in Swinfen v. Swinfen (1), the client not having been aware of it, not having sanctioned it, and refusing to be bound by it: and that decision was affirmed by the LORDS JUSTICES (2). * * * (MONTAGUE SMITH, J.: Might the attorney here have compromised by taking 5s. in the pound for the debt ?) Clearly not. (KEATING, J.: Could he have consented to refer the matter to an arbitrator, who might award *that to be done?) The attorney as well as the counsel probably has authority to refer, but not in an unusual manner. [He referred to Swinfen v. Lord Chelmsford (3).] If an attorney were to consent to a reference, giving the arbitrator power to order something out of the usual course of business, his act would not bind his client. (BYLES, J.: Is not the question different where it arises between attorney and client, and where between party and party?) No doubt. (BYLES, J.: Lord CAMPBELL, in Fray v. Voules (4), says: "An attorney retained to conduct a cause is entitled, in the (1) 27 L. J. Ch. 35. (2) 119 R. R. 160 (2 De G. & J. 381). (3) 120 R. R. 873 (5 II. & N. 890). (4) 117 R. R. 483, 488 (1 El. & El. 839, 847). [ 808 ] [ *809 ] v. POLEY. PRESTWICH exercise of his discretion, to enter into a compromise, if he does so reasonably, skilfully, and bonâ fide (as the defendant is to be taken as having done), provided always that his client has given him no express directions to the contrary: but, where these directions have been given, such a step, though perhaps binding as between him and *third parties, is ultrà vires as between him and his client.") [ *311 ] [ 810] What is the authority which is given by the client to his attorney when he instructs him to sue for a debt? Surely not to take back the goods, having secured his own costs! Besides, here, the compromise took place with the attorney's clerk, whose authority was disclaimed by his employer. In Bingham v. Allport (1), where it was held that a tender made to the managing clerk of the plaintiff's attorney, who at the time disclaimed authority from his master to receive the debt, was insufficient, LITTLEDALE, J., said: "Although a party put his case into the hands of his attorney, who thereby becomes authorized to accept payment, it by no means follows that all the attorney's clerks have such an authority also." So, in Pennell v. Stephens (2), a notice of an act of bankruptcy given by one attorney's clerk to another attorney's clerk (not being shown to be a managing clerk), was held to be insufficient: but the Court did not decide that the notice would have been good if the person to whom it was given had been managing clerk. (ERLE, Ch. J.: That must depend upon the circumstances. A managing clerk is often put in the place of the attorney himself.) Needham, in support of the rule: Whatever be the relative liability as between the attorney and F de at th v. POLEY. a specific performance: 27 L. J. Ch. 35, 2 De Gex & Jones, PRESTWICH 381, 21 L. J. Ch. 491; and a new trial of the issue was directed, at which a verdict was found for the plaintiff, and this verdict was upheld: 28 L. J. Ch. 849. In Thomas v. Harris (1), upon a motion for a new trial on the ground that the damages were excessive, an offer having been made, which the plaintiff's counsel, in the absence of his client, hesitated to accept, POLLOCK, C. B., without eliciting any expression of dissent from the rest of the COURT, one of whom was BRAMWELL, B., said: "The plaintiff's counsel has authority to do so in the absence of his client. Let that be clearly understood. The late case of Swinfen v. Swinfen does not at all affect the ordinary authority of counsel. That was a case of something beyond the ordinary scope of their authority, and, as was alleged, against an express direction." (ERLE, Ch. J.: After verdict given, the plaintiff's counsel was pleased to say that the jury had been too liberal!) Thomas v. Harris was cited without disapprobation in Fray v. * * * I am of opinion that this rule should be made absolute. The action is brought to recover the price of a pianoforte sold and delivered by the plaintiffs to the defendant. The plaintiffs' attorney having agreed with the defendant's attorneys to settle the action by allowing the defendant to return the pianoforte (1) 114 R. R. 1049 (27 L. J. Ex. 353). (2) 117 R. R. 483 (1 El. & El. 839). [ *812 1 [813] |