Trevelyan, J.

1. This is an application to set aside the decree made byconsent on 30th March 1886. The facts on which I must act are contained in anaffidavit made by the plaintiff and also by Mrs. Westcott, her daughter. I ambound to say at the outset that it is somewhat extraordinary, considering theterms of the affidavit, that the attorney on the record, who was perfectlycognizant of the facts alleged, did not support it. But I do not think thatthis circumstance-although one would have expected the attorney to come to theassistance of the Court-would justify me in refusing to act. The case came oilfor hearing for the second time on the 30th March 1886. On a previous occasionI had decided a particular issue, and held that the plaintiff under herhusbands will was entitled to the property for life.

2. When the case was called on, counsel for the defendant,seeing that a continuance of the litigation would involve the disappearance ofthe property in suit, suggested that I might assist in a compromise. I feltthat it was clearly a case which the parties ought to settle. But there wasnothing to compel a settlement, and the parties were entitled to a decision ifthey desired it.

3. Counsel on both sides then came to my room and wediscussed the terms of settlement, which were to a great extent suggested byme, and which appeared to me to be extremely reasonable. So far as 1 recollect,when we had discussed the terms, counsel for the plaintiff left the room to gethis clients consent, and I impressed on him the necessity of his getting herconsent. Counsel came back, having explained the matter to his client, andhaving, as I thought, obtained her consent. Terms were put in and signed bycounsel on both sides.

4. The next day the plaintiffs attorney wrote andrepudiated the settlement. (The Court here read Mr. Lewiss letter of the 31stMarch to the Registrar of the Court.) As I understand it, it is not disputedthat this dissent was communicated the same day to the defendants. At any rateon the 5th April 1886, six days after the consent decree, express notice ofthis application was given to the defendants and their attorney, and at thattime no decree had been drawn up. Had the decree been drawn up and sealed, itwould have been impossible to deal with the case. A long affidavit has been putin; in it Mrs. Carrison says that she declined a settlement throughout, andthere can be no doubt that this statement is correct. (Here followed portionsof that affidavit.)

5. Several cases have been cited to me, and I think that Imust decide in favour of the plaintiff. It may be very hard on the defendantsthat, when a settlement was formally drawn up by both sides, the matter shouldbe reopened; but, on the other hand, it would be hard to insist upon theplaintiff being bound in a compromise to which she was not an assenting party.

6. I will cite in passing the remarks of Vice-ChancellorMalins, in Holt v. Jesse L.R. 3 Ch. D. 177 a case in which Jesse was actuallyin Court at the time of settlement.

Now I can only say that this is an order which, if Mr. Jessedid not consent to, he ought to have consented to most cheerfully andthankfully; but I am satisfied that he did consent to it. He was present inCourt and thoroughly understood it, and he is not, in my opinion, at liberty towithdraw the consent then given." (The plaintiff in the case before meswore that she never at any time consented to any settlement).

7. But as much has been said in the course of the argument,and authorities have been cited about the general principles of the Court inwithdrawing consent given to orders, I beg to express my opinion, which Ibelieve is in conformity with all the cases that have" been cited, that,if it shall turn out that by fcbe inadvertence of counsel, by the carelessconsent of the plaintiff or defendant himself, not fully knowing or consideringwhat he is about, an order given by consent has prejudiced him in a mannerwhich neither he nor his advisers could have anticipated at the time, such asin the case of Swinfenv Swinfen 2 De. 6. & J.381 : 26 L.J.C.P. 97, wherecounsel was instructed to do one thing and consented to a totally differentthing; that is, for instance, being instructed to make a claim to an estate infee simple, he consented that the claimant should have a life estate only, or atenancy for life; that is entirely beyond his authority, and nothing could bemore reasonable than that his client should not be bound by such a consentinadvertently given.

8. The case of Strauss v. Francis L.R. 1 Q.B.D. 379 cited byMr. Pugh and much relied on, is cited by Malins, V.C. in Holt v. Jesse. If theproposition of "Vice-Chancellor Malins is correct, a fortiori the suitoris not bound here. Here there is no consent at all, but a careful dissent. Itis difficult to say how it came about that counsel consented.

9. The case of Strauss v. Francis L.R. 1 Q.B.D. 379 theprinciple is laid down by Blackburn, J.: "We are all agreed that thereclearly ought to be no rule. The plaintiff by no means makes out that there wasany express dissent on his part to withdrawing a juror; there is nothing on theaffidavits to show that the client absolutely withdrew all authority, nor isthere anything to show that counsel had done so unprofessional a thing as toundertake the conduct of a cause giving up all discretion as to how he shouldconduct it; still less is there anything to show that there was the slightestknowledge on the part of the other side that the apparent general authority ofcounsel had been in fact limited."

10. It is true that in this case the defendants had not, atthe exact moment of the decree being made, any knowledge that the authority ofthe plaintiffs counsel had been limited by the plaintiff, but they obtainedthis knowledge almost immediately, and before the decree was drawn up; for theplaintiff took steps the next day and wrote to the Registrar not to draw up thedecree.

11. So far as I can see the plaintiff has repudiated theconsent within the time she was entitled to do so. I, therefore, think that Icannot exclude her from going on with her case.

12. I, must allow this case to be re-tried.

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Carrison vs.Rodrigues and Ors. (21.04.1886 - CALHC)