
    LIVINGSTON vs. CORNELL.
    Fall 1812.
    I. District.
    Attorney and counsel-lor cannot recover against his client, on a special contract.
    Bargain or no purchase no pay, or for part of the thing sued, iniquisous.
   By the Court.

This is a motion for a new trial. The facts, in the case, are as follows:

The plaintiff, having unsuccessfully represented the defendant in a suit on an embargo bond, the penalty of which was the sum of fifteen thousand dollarsm proposed to prosecute a writ of error in the supreme court of the Unites States, The defendant would allow him, in case of success, ten percent or fifteen hundred dollars, and advance one half of that sum for his travelling expences to the city of Washington. The defendant declined to make any advance, but manifested an intention to accept the offer, if the advance was dispensed with; the plaintiff insisting thereon, no contract was made, and a gentleman in the city of Washington was written to, a fee of two hundred dollars was transmitted to him, and he undertook to attend to the suit, expressing his hope that, in case of success in it and two other suits, which were committed to him at the same time, an addition of one thousand dollars to his fee would not be deemed too great. Some time after the plaintiff went to the United States, to attend to his own concerns; and finding that he would likely be detained there till the conclusion of them, wrote to the surety of the defendant in the writ of error, that "he should, of course, attend to the suit," and that "in case of success, he should expect "the allowance of ten per cent. from which should "be deducted the sum advanced to Mr. K. "($ 200) and take upon himself all other charges, " and if he did not succeed, he would make no " other charge." He desired the surety to communicate the letter to the defendant. On this be ing done, the defendant answered, " Hang it-"let him go: he has been well enough paid :" referring to a sum of five or six hundred dollars, received by the plaintiff for his services in the court below. The surety did not communicate this reply to the plaintiff. About five months after this application, the suit came on in the supreme court, the plaintiff attended, and the judgment was reversed.

The plaintiff brought the present suit stating that "the defendant was indebted to him in the sum of thirteen hundred and fifty dollars for his " services, as an attorney and counsellor of the su- " preme court of the United States, in prosecut"ing a writ of error for him, &c. and for divers "sums of money, laid out and expended, &c."

The jury found a verdict for the plaintiff.

If this verdict be set aside, it must be because it is contrary to evidence or contrary to law.

Whether the defendent gave his assent to the offer of the plaintiff, is a qusstion which the plain. tiff contended the jury ought to infer, from the expressions of the defendant, Let him go o-on from his silence, and suffering the plaintiff to proceed, without informating hum if his dissent. What ever may be the opinion of the judges on this point, it is believed that the question was properly of the cognizance of the jury, and the court cannot say that they were without evidence, or decided contrary thereto.

In the verdict be contrary to law, it is because the contract laid in the petition, and proven to the jury, is one for which the law gives no action. The question which, therefore, presents itself for the solution of the court, is-

Does the law give an action to an attorney and counsellor, prosecuting a writ of error, on a contract to take upon himself all charges that will accrue, for one tenth part, or ten per cent on the sum in depute, in case of success; engagig that if he does not succeed he will make no other charge?

The French, the Spanish, the English, and the Americans, have drawn those principles of their jurisprudence, by which this question is to be regulated, from the Roman law.

At Rome, advocateswere not allowed to make any contract, with their clients. Let the advocate, says the code, make no contract with the suitor, who gives him his confidence: let him make no convention. Nullum cum eo litigatore, contrac-tum, quem in propriam recipit fidem, ineat advo-catus: Nullam conferat pactionem. Cod. Lib. 2, Tit. 6, l. 6, s. 2.

No convention, nor contract, about the suit or his reward. Nullum neque pactum, neque contrac-tum de lite aut mercede. Synopsi. Bas. 1, cap. 18.

But above all, the Roman law reprobated conventions, by which advocates stipulated to receive part of the thing in dispute. An attorney, or counsellor, says Gothofred, may well advance his money, to carry on his client's suit, and stipulate that he will receive it back with lawful interest. Such a stipulation is honest and lawful: but if he stipulate to receive one half of the thing in dispute, this will be deemed an iniquitous bargain. This convention for a part of the thing in dispute, is unjust. Quod si partem dimidiam ejus quod ex ed lite fuerit, pactum iniquum censebitur. Pactum hoc de quota litis injustum. Digest, lib, 2, tit. 14, l. 53, n. 25, 25. 27.

It is unlawful to make a bargain for a part of the thing in suit. Villainous are stipulations of this kind. De quota litis pacisci non licet: sunc-enim consceleratae huju modi pactiones. L. 1, Cod. Theo.

The remuneration of the advoccate could not be fixewd by any agreement, nor sued for in any ordinary action. Nulla potist definiri conventione, nulla ordinaria action feti, Adleg. Si quis ad-vocatorum. Cod. de postulando.

Honoraire, says Ferrier, is what is give to those, the honor of whose profession does not allow them to receive a salary, as advocates and physicians. It is called honoraure, because it is honest to receive it, but shameful to demand it. It cannot be fixed by any convention: it cannot be sued for in any action. Dict. de Droit, verbo Honoraire.

Any convention, which an advocate would make before hand, would be considered as exaction on his part, as wealcness on that of the client. The suitor would give all his property to the advocate, as the sick titan to the physician. Id. erbo Avocat.

It is not lawful, therefore, for a lawyer to make any bargain de quota litis. This kind of precaution, against the ingratitude of the client, has always been considered as sordid. Id.

One does not see an advocate plead for his honorary. The disposition od the Roman law, which denied to advocates any action for their honoraries, has been adopted by an arrest of the parliament of Paris. Id.

Many instances are to be found in the old French law books, of advocates bringing suits for their fees, and recovering on them; but this has long ago fallen into distance. In the contest, in 1775, between Mr. Linguet and the order of advocates, one of the charges against him was, that heard written to the Duke d'Aiguillon to demand his fees, and threatened and with an action for them; and that his demand upon the Duke had been referred to arbitration. 7 Journal Historique du Rétablissement dela Magistrature. 290.

In England the fees of counsel are hartorary, in the strict acceptation of the word.

Otherwise, says Lord Coke, of a counsellor at law, for be cannot bring any action. For he is not compellable to be a counsellor, and his fee is honorarium, not a debt. 1 Instit. 295, a.

A counsellor brought a bill for fees due him by a solicitor; the defendant demurred, the demurrer was allowed, and the bill dismissed. Moor vs. Row. Ch. Rep. 38.

The fee of a counsellor is a gift of such a nature, that able client may nor neglect to give it without ingratitude. For it is but a gratuity or taking of thankfulness: yet the worthy coun-sellor may not demand it, without doing wrong to his reputation, according to that moral rule: Multa honeste accipi posunt, quae tamen peti non possunt. Sir Jno. Davis is preface to his reports. 22, 23.

No action lies for counsellor's or physician's fees, they being given as a mere gratuity, 1 Bacon Abr. 5.

It is established with us, says Blackstone, that a counsel can maintain no action for his fees, which are given, not as a locatlo vel conductio, but as quiddam honorarium : not as a salary or hire, but as mere gratuity. which aconnsellor cannot demand without doing wrong to his retutation. 3 Comn. 28.

Neither is an action sustainable, in England even in a court of equity. In the caseof Thorn-hill vs. Evans, Lord Hardwicke expressed great surprise that it could be imagined that a counsel-lor might demand his fees in a court of equity. Can it be thought, said the chancellor, that this court will suffer a gentleman of the bar to maintain an action far his fees, which is quiddam honorarium? 2 Atkins, 331.

An attorney cannot carry on a cause for another, at his own expence, with a promise that he never will expect a repayment, unless he carries the cause: or, upon no purchase no pay. Wood's Inst. 413. since the notes became due. Story's Chitty, 162-3.

By the Court. The defendant having passed the note to the plaintiff, after the alteration in the place of payment was made, cannot take advantage of this alteration. It may affect the hote as to the maker, and the endorsers through whose hands it passed before it was altered; but endorsers, who received and passed it away after, cannot complain.

Whether there was a regular notice, in other words, whether the one given was left at the proper place, was a matter of evidence, properly to be determined by the jury.

New trial denied.  