
    J. Miles v. J. R. Ervin.
    1826.
    
      Columbia.
    
    What con-^between8"a attorney and
    The bill charged, that the complainant was seised of tract lan(l granted to him in the year 1811, and that a certain John Harper having trespassed on it, complainant employed J. R. Ervin as his attorney at law to sue him; and he accordingly brought suit against the said Harper in the year 1812, and in March 1813 obtained a verdict' against him with damages and costs, which was appealed from for delay. That whilst the said cause was pending on the appeal the complainant conversed with the said J. R. Ervin, who assured him that the appellant Harper had no chance of success on the appeal, as complainant’s title was good. But in the year 1815 the said Ervin informed complainant that he had been mistaken in his opinion, and he then considered Harper’s chance of getting anew trial pretty certain, as complainant’s title was doubtful; and he advised the complainant to sell the land for what he could get. That the complainant’s fears being thus excited, he offered to give his said attorney a bale of cotton, as an additional fee, if he would exert himself in his cause; and soon afterwards, being under the impression, from what his attorney had stated, that he had really discovered some defect in his title, he, the complainant, sold the land to Robertson Carloss, for three hundred dollars, which was not more than an eighth part of its value. This occurred whilst the said Ervin was attending the Court of Appeals at Columbia. That complainant after-wards learnt that the appeal had been abandoned by the counsel of Harper, and the cause struck off the docket without argument; which induced the complainant to believe that the last advice of his said attorney was a contrivance to obtain a new fee, by which complainant was a great loser, and he declined paying him the stipulated bale of cotton. That the complainant has since discovered that the said attorney had another motive for advising him to sell, and misrepresenting his title; for at that very time he had entered into copartnership with the said Robertson Carloss, to purchase the said land together, which they accomplished by means of the said representations : and it was concealed from complainant that his attorney was interested in the said purchase by the title being taken in the name of Carloss alone, who, by their private agreement, was to resell the land and pay to said Ervin half the advantage derived from such sale, and he to.be equally liable for half the damages, if any should be ever sustained on the warranty given by Carloss to the purchaser, and for a recovery by any paramount title. That the said Carloss afterwards sold the land in question to one John Brown for $2500, and had paid one half thereof to the said Ervin, the attorney of complainant. The bill prayed, that the said James R. Ervin be decreed to pay the sum of $2500 to the complainant, who lost that amount by the breach of the confidence he reposed in him.
    The defendant, J. R. Ervin, in his answer, stated that the complainant some time about the year 1811 applied to the defendant to bring a suit for him against one Harper, to try the title of a tract of land. That defendant understanding there was an older grant for the land, advised him that the production of such older grant would defeat him. But the complainant insisted that he should go on. Defendant commenced the suit and employed one Harten to make a survey; and after some time the cause was tried, and a verdict found for the plaintiff Miles in the suit against Harper,' from which an appeal was taken up, on the ground that the cause ought to have been continued at the instance of the de-' . fendant. That he, defendant, examined the re-survey, an<3 found that part of the land claimed by the plaintiff was located by 'Harper under an old grant, and Harper stated on oath that he was the tenant of ID. Blythe, representing the Alston estate; and this defendant was then, and was still of opinion, that there are older grants for the land in the Alston family. Defendant, after the verdict at law in favour of Miles, entered up judgment, and notified John Miles, the complainant, that he should not attend to the case on the appeal; and other counsel were appointed. That in the progress of the cause, before the verdict, R. Carloss took an active part, and assisted and employed counsel to aid defendant in conducting the cause. The defendant advised John Miles to build a house on the land and put a tenant there, which he did; and stated that, the ground on which Harper sought to obtain a new.trial would not avail him, and that Miles had nothing to fear from Harper's title, but that he had something to fear from Alston's title to the land, which was well known and much spoken of in the neighbourhood, and held by their tenants; and Miles had seen a plat máde by Leget, surveyor for Harper, which included part of the land claimed by Miles.
    
    Defendant was informed that Harper, who had held the land as tenant of Alston, but' paid no rent, applied to R. Carloss to join him in getting a new grant for the land ; and after some time Carloss and Frederick Miles agreed to employ John Miles as their agent to obtain a grant for the land, and bring a suit in his name, and they would pay the expenses. Defendant further stated that after entering up the judgment, as above stated, he considered all his duties as at an end, until about the month of November 1815, at which time R. Carloss informed defendant that John Miles had offered to sell him the land in question for $500; and that he, Carloss, finding J. Miles had refused to consider himself his agent, had offered him $300 for the land, and requested defendant to join him in the purchase, to which defendant consented; which defendant thought was fair, upright, and just for him to do. That some little time after the complainant came to the defendant and informed him of the offer of Carloss to purchase the land, and asked what would certainly be the result of the trial of his cause on the strength of his title; to which defendant answered that he had no doubt of the case being decided eventually against Harper, “ but that with regard to Alston’s title, his was doubtful and uncertain, and of which the complainant well knew.” On this advice the complainant said that he would not sell to Carloss at his offer, and would risk Alston’s title, and agreed to give this defendant a bale of cotton to attend the Constitutional Court and get the verdict confirmed. If not, he was not to get any thing for his trouble. Whereupon the defendant set off immediately for Columbia to attend the Court, and during his absence Miles conveyed the land to Carloss on the 22d of November 1815, without the knowledge of the defendant.
    After defendant’s return home Miles refused to pay him the bale of cotton, though the verdict was confirmed by the Court. Some time afterwards R. Carloss said to the defendant that he should have one half of the land: subsequently thereto Carloss sold the land so purchased,' and some other lands, to John Brown for $2500. And some time in the winter or spring of 1820 the defendant gave to R. Carloss an indemnity for one half of the lands, provided a recovery should be had against him on account of the sale thereof to John Brown ; and the said Carloss sent to this defendant the bond of J. Brown, with a balance due thereon of $900; and wrote that he would deliver him other papers to the amount of 
      ‡ 100, which he had never done, and that the said bond wag aq tjjat jje received or expected to receive. The defendant positively and unequivocally denied, that he at any time whatever made any false or untrue representations to the complainant with regard, to the land or his title, but in all his actings and doings with the complainant he was guided by truth, and to the utmost of his knowledge advised him of the true standing of his case, and that subsequent events had fully confirmed him in the opinion which he then gave. And that in September 1820, the complainant stated to the defendant, that Carloss, for himself and this defendant, had agreed that if his claim should turn out eventually to be good, that he would pay him $2000 for the land, or $1700 in addition to the $300 already paid; and he called upon this defendant to pay his proportion, which was refused. Complainant Miles then offered to be satisfied with the payment of $200 by Carloss and defendant which was also refused. Defendant believed, that complainant Miles was not induced to sell the land to Carloss by any advice given to him by defendant, but by his want of money, and by the adviee of William Thomas, with whom he consulted; and defendant had been informed by Carloss that after the verdict at law was established in the Constitutional Court, Miles, the complainant, said he had not been fully paid the value of the land, and demanded about fifty dollars more, which was paid him.
    A receipt was produced dated the 25th of October 1815, signed by J. Miles, by which he acknowledged to have received from R. Carloss fifty-eight dollars, in part payment for a tract of land, supposed to contain 640 acres (the one in dispute) which he promised to make a good title for to R. Carloss, on his paying 4,000 weight of seed cotton, one half on the execution of the title, and the other half on the following January or March.
    
    
      A memorandum was produced dated the 15th of January 1820, signed by James R. Ervin, which stated that R. Carloss had bought of John Miles certain lands for $300, which was for the joint benefit of said Carloss and J. R. Ervin, and that the land, or part thereof, had been sold and conveyed by Carloss to John Brawn for $2,500 which was for the benefit of Carloss and Ervin, and that in case any or all the land should be recovered from the said J. Brown, his heirs or assigns by law, he the said J. R. Ervin was to be accountable to Carloss for one half the damages, costs and charges to which Carloss might be put in consequence of any such suit or recovery: and Ervin acknowledged in the writing that he had received from Carloss the bond or note of J. Brown for $1,000 payable on the 1st of January 1820, in part of his share or dividend of the said purchase, the balance if any to be ascertained on settlement.
    
      R. Carloss testified, that he had some conversation with the Miles, John and Francis, relativé to the land in question, which led to an agreement that -he, Carloss, should be let in to have half the profits of the purchase, on paying half the expenses, and he, Carloss, employed an attorney — Air Witherspoon, and Mr Miles another — Mr Ervin. A suit ,was brought in the name of John Miles against Harper, and a verdict obtained, and . an appeal took place. John Miles wanted a greater' advance of money from the witness which was refused. Miles of-. fered to sell Carloss his share of the land for from $300 to $400 which was not agreed to. Witness saw Colonel James R. Ervin the defendant in this suit, and asked hinoi to join in the purchase of the land from J. Miles, and told him that he thought it could be got for $300, if he Ervin, would not encourage Miles. On the 23d of October 1815 Miles agreed, in writing, to sell the land to witness for $300. The witness also paid for the re-survey and attendance of the surveyor. And in November 
      
      1815 Miles gave witness a conveyance of the land in pursuance 0f the agreement, and witness paid Miles the amount of the consideration, to wit $300, in cotton. Witness then wrote to Ervin to tell him, that if he did not pay him part of the money he should not have any part of the land, on which Ervin sent him fifty dollars in part. The agreement was reduced to writing on the 15 th of January 1820, between Carloss and Ervin. It was of course some time after the verbal agreement; prudence required that it should be kept secret for some time. Ervin when he agreed verbally to join in the purchase with witness, did not say whether he could throw cold water on the title of Miles to the land 1 On being cross-examined this witness said, that after the decision of the suit at law, Miles v. Harper, Miles worried witness, and said he had not given him enough for the land, and witness to satisfy him gave him his note for forty-five dollars in January 1810, which had been paid. In the year 1820 the secret leaked out; for before that Miles knew nothing of the transaction between witness and Ervin about the land. Witness attended to the suit of Miles against Harper, and paid half the expenses. Witness did not employ J. R. Ervin as counsel. He was employed by Miles. The object of the witness in procuring Ervin to join him in the purchase was, to have a lawyer to defend the suits. The sale for $2,500 to Brown covered and conveyed the land in question, and part of another tract of inferior value worth about $500. But much of this tract was taken off, and the remainder was of little value.
    Colonel Rogers a witness for defendant testified, that he knew the land in question. It was always considered Alston's land, and.Miles lived near it. .Witness told Miles that they would all lose the land as it was Alston's. Miles said Harper had dug up the corner trees, but he knew the. places. This was in 1820. Harper had previously acknowledged himself the tenant to Blythe for the Alstons. He afterwards denied that he was tenant. Harper had lived there a long time. In 1803 he told witness he would run the land, but witness then discouraged him by telling him it was Alston’s. Miles was a poor man. Witness would not have given a cent for Miles’ title when he sold to Carloss. The land was not good, nor of much value. Miles told witness -he was going to sue Ervin, and said he had discouraged him as to the title, and said that it was bad, and that Alston’s was better. Witness did not think -that was a misrepresentation, but the truth. Witness had seen the titles of Alston. Efforts had been made to locate the land without success, but thought it could be located.
    Mr Thomas testified that Miles told him that Carloss had offered him ‡300 for a quit claim to the land, or ,f‘500 for a warranty title. Witness advised him to take the $300, because he had been informed that the Alstons had a good title to the land, which was indeed generally known. Witness, soon after, heard the bargain with Carloss was completed. Mr Ervin was not present at the conversation. Miles always lived within five or six miles of the land. Miles was poor, but had a little property ; a’horse or so. Witness thought well of him, and would trust him for $100.
    
    Mr Sanders testified, that he was present at a conversation between Miles and Ervin in September 1820. Miles acknowledged that in 1812, and subsequently, Ervin advised him that his title was good against Harper, but doubtful as to Alston. At that time Miles' made no complaint that Ervin had deceived him. Miles agreed to give Ervin a bale of cotton, to go to Columbia to support the verdict he had obtained against Harper for the land. And Miles stated, that Carloss had promised to give $1000 for the land if the causé was .finally gained., He admitted that, whilst Ervin was gone to Columbia, 
      to attend the suit, he had made the contract of sale with Carloss. On his cross examination, testified that he had put down the date, September 1820, because there were considerable quarrels between Miles and Ervin; and he put down in writing the conversation, from which he had refreshed his memory. Gadi Witherspoon was present: he was since dead. Miles accused Ervin of cheating him out of $'1000, by throwing cold water on his title. Ervin denied it; and said that he had never got moré than a bond for $900. After much altercation, Miles offered to take and be satisfied with $100. Ervin said he would not give him that money, unless he would guaranty the title against Alston.'
    
    Col-. Rogers (re-examined) testified, that a small house, an old one, was removed by Miles, and put upon the land in question, but no person lived there. Cox had lived there a long time as tenant óf Blythe.
    
    
      ■ Josiah J. Evans, Esq. testified that he received instructions, three or four years ago, from Mrs Alston to pusue her rights to certain tracts of land, and among others, the land now in dispute. He examined the papers and thought the chain of title was perfect down to Mrs Alston, to the land now held by Brown, which was the same land formerly held and claimed by Harper. Witness employed a surveyor to locate the land,- but he did not succeed. The surveyor stated that he had no doubt the land was there, but he could not locate, it, because the neighbours refused to shew their plats or their lines. Before any thing was done the suit abated by the death of Mrs Alston. It was not yet revived, because the Alstons declined suing at a risk; but would reward the counsel liberally if he succeeded, which terms witness doubted if he would accept. The suit was in 1820 —-1821. Witness understood that the lines had been destroyed except one tree. Heard formerly the line 'was plain. He thought the Alstons had not been in possession themselves,-but they once had a tenant on the land, not latterly. Harper lived some years on the place he occupied, and Miles took possession afterwards, and built on it. The heirs in the Alston family had been femes co-vertes till Dr Blythe’s death. The witness did not consider the recovery of the land by the Alstons as by any means certain, by reason of the difficulty of the location, the statute of limitations, &c. In ] 815, the title could have been sustained if the location could have beeh made out.
    Feb. 1825.
    The record of the verdict of Miles v. Harper was in the spring of 1813; deed from Carloss to Brown, 13th of January 1819, for the land in question.
    De Saussuke, Chancellor.
    The first question is, did the defendant Ervin abuse the confidence reposed in him by John Miles, and advise him erroneously and wilfully as to the nature and quality of the land in question ; and to use the expression of the witness, “ throw cold water on it5,<? This is charged in the bill and denied in the answer ; and it is satisfactory to be able to say that there is no evidence to support the charge or to contradict the answer. Carloss does state in his testimony, that he proposed to Ervin to throw cold water on the title, so as to discourage Miles, and induce him to sell the land low. But Ervin did not express his assent to this proposition. And it is in evidence that the opinion given by. Ervin to Miles was, that his title (his new grant) was good against Harper, but was very doubtful as to the Alstons, who, it was believed, had an older grant and title. Now this advice was what was proper to be given, for Mr Evans, who has examined the titles of the Alstons professionally, is of opinion, that it is a good paper title, and can be sustained against all the claimants, unless defeated by subsequent and adventitious circumstances, such as the difficulty of location from the destruction of the lines, the statute of limitations, &c. And one witness, Mr ÜQgers, testifies that Mr Miles admitted that he had been dealt faii'ly with by Ervin, as to, this advice.
    The next question is, was Mr Ervin at liberty to become the purchaser of the land, jointly or in concurrence with Mr Carloss, from Miles6}
    
    If the relation of client and attorney had been entirely at an end, then undoubtedly Mr Ervin would have been at liberty to have dealt with Mr Miles, in relation to the property in question, as well as any other person: for that relation does not continue, after the occasion of it is at an end, to operate as an eternal bar to the dealings of the parties. It does not, .however, appear to me, that the relation was at an end in this case. A verdict at law had been obtained by Ervin.for Miles; but a mo-, tion was pending in the Constitutional Court for a new trial, which it was the duty of Ervin to have attended to generally, even exclusive of the particular fee of a bale of cotton, promised by Miles for that particular portion of the service; and it was during his attendance at Columbia on that duty, that Miles contracted to sell the land to Carloss; so that the relationship of client and attorney subsisted at the time of the sale; but the sale was to Carloss, without any knowledge on the part of Miles that Ervin was concerned with him in the purchase. The evidence, however, of Carloss is explicit, that he had requested Ervin to be concerned with him in the purchase of the land which he wished to make from Miles, and to which he had agreed; though he did not accede to the plan of throwing cold water on the title. Nor is the fact of his being so concerned in the purchase at all disputed. For Mr Ervin, in a memorandum in writing dated the 15 th of January 1820, given to Carloss, stated that Carloss bought the land in question from Miles 
      for $300, for the joint benefit of said Carloss and said Ervin; and that Carloss had sold the land or part of it for $2500, of which he, Ervin, had received a bond for $900, as part of his share of the gain; and he indemnifies Carloss in case of loss. And Carloss has, in pursuance of the agreement between him and Mr Ervin, actually delivered him one of the bonds of Brown, to whom Carloss sold the land, at an advance of nearly eightfold; a moiety of which Mr Ervin accepted as his right, founded on the preceding contract. We are brought then distinctly to the question, “whether the policy of the law forbids an attorney to be concerned in such a dealing with his client for the property in litigation then under his charge, even though there be no proof nor reasonable ground to believe that there has been any abuse of confidence or fraudulent imposition on the client1?”
    This is a question of importance, and not clear of difficulties. The rule, long since laid down in equity and practised upon, is, that agents generally cannot so deal’ with their principals, without being subject to have’ their contracts set aside, or the advantage gained refunded: and this, without reference to the fairness or unfairness of the bargain in relation to the property, the subject of their care as agents. This is manifestly a rule of policy, calculated to prevent such dealing altogether; because the opportunities of advantage, and the temptations, are very great; and it was thought to be wiser and safer to prohibit all such dealing, rather than to attempt to examine the nature of the dealing in each particular case. The counsel for the complainant have cited many of the decided cases on the subject. They are also collected in the case of Butler v. Haskell, 4 Desaus. Rep. 652.
    It has been much agitated,’whether this rule ought to be applied to the relation subsisting between attorney and client; and there has been some diversity of opinion. it is obvious, that the temptation is often as great in that relationship as in any other. Why it should not be applied is not easily discerned. The rule is not founded on any statute, but has grown up out of successive decisions, founded on experience of' the necessity of such restraints on agents of every description, in order to secure fair dealings. The Courts have shewn the same jealousy of solicitors as of other agents, and will not permit them to change their connection with one party and transfer it to the other, evidently lest they should be tempted to betray the secrets of the cause first confided to them. In Earl Cholmondeley v. Lord Clinton, 19 Ves. 261, it was decided, that an attorney or solicitor could not give up his client and act for the opposite party in any suits between them, though it was his partner only who had been the confidential adviser, and the partnership was at an end. And this is in conformity to the older decisions, and to correct principle.
    In the case of Hall v. Hállet, 1 Cox’s Ca. 134, Lord Thublow decided, that an attorney should not have the benefit of a bargain made with the administrator of an estate, who had employed him; and added emphatically, (p. 140) “that no attorney can be permitted to buy in things in a course of litigation, of which litigation he has the management. This the policy of justice will not endure.” And Lord Thublow added, that counsel ought not to receive a fee from a party against his former client, though in another suit, if he knows any thing which might be injurious to his former client.
    On the other hand, in Cane v. Lord Allen, decided in the House of Lords, and reported in 2 Dow’s Rep. 289, Lords Eldon and Redesdale both expressed their opinions, that if the decision in the Irish Court of Chancery went on the. ground that an attorney could not enter into a contract with his client, there was no such doctrine in the law.
    Upon this decision I may be permitted to remark that Lord Redesbale was clearly of opinion, “ that the- relation of attorney and client did not exist between these parties so as to place Cam, the attorney, in a situation to throw any obstacle in the way of his making this purchase, and he took no advantage of confidence placed in him by Lord Mien, or of any superior knowledge of the value of the estate acquired as agent.” It would appear then that the question did not arise in the cause, and that the declarations of thesé great Judges on the point were mere dicta. Again, it may be remarked, that the long acquiescence of many years was made a substantive ground of the judgment of the Court in that case. Another remark I would make is, that Lord El-doN himself states, “ that if one, not employed before as an attorney, was employed for the sale of the estate, and advised his employer to sell it to himself (the attorney), the Court of Equity would say, ‘ the nature of your employment was such as rendered it incumbent on you to give the best advice to your employer.’ And unless he withdrew from that connection, or put himself completely at arm’s length, he must shew, in case the contract was questioned, that he had given the same disinterested advice that he naturally would have given if the contract had been made with another party.”
    It does appear to me, that requiring the attorney to withdraw from the' connection does Seem to admit, that whilst the connection lasts it would be improper in him to become the purchaser from his client; and such purchase would not be sustained. If we look into the older cases, we shall find in. Wahnesley v. Booth, decided by Lord Hardwicke, and reported in 2 Atk. 25. 27, that relief was given against an attorney on a large bond obtained by him from Japhet Crook (one of the most cunning and wicked of men) for essential services alleged to have been rendered him, and for future services. On the first hearing Lord Hardwicke was so impressed with bad character of Crook, that he decided against his estate: but on the .second hearing, he was clearly of opinion, that an attorney could not be permitted so to deal with his client; he said that the case is stronger between attorneys and clients than any of the cases to which it had been compared by the counsel; to wit, dealing with young heirs, marriage, brokage, bonds, &c. The reason the Court goes upon is, “ the great power and influence that an attorney has over his client,” and the Court would not sustain the bond, because it might encourage attorneys, after they had got into the secrets of their clients, to extort from them unreasonable rewards to themselves.
    In The Drapers1 Company v. Davis, 2 Atk. Rep. 295, a solicitor took a judgment from his client for £400 whilst the cause was pending; and' though the account had been allowed, and the bond given 17 years before, the judgment was set aside and the securities ordered to be given up. And so in more modern cases. In 2 Ves. Jun. 119. 201, Newman ,v. Payne, Lord RosslyN states that there are peculiar restraints upon attorneys, and that they are not to deal with their clients upon exactly the same terms upon which men at large deal with each other. Relief was given in the case.
    In Morse and Royal, 12 Ves. 355. 371,372, Lord Ers-kine states certain contracts to be void by the policy of law; such as deeds of gift by a client to an attorney, by an heir to a guardian, the purchase of a reversion from a young heir, a trustee selling to himself; which are all subject to be set aside without evidence of fraud. And he cited (p. 372) the case of Middleton v. Welles, decided in the House of Lords, in 1785, reported 4 Bro. P. C. 245 (Edit. Toml.), in which Lord .Thurlow said, (9 Yes. 294) “Middleton deserved to be and, under other circumstances, might have been an object of that party’s bounty; but the deed taken by an attorney, whilst he was the attorney of the party, could not be supported without striking at the root of property ; and referred to Walms-ley v. Booth, and Sanderson v. Closse, both cases of attorneys.” The opinion of Lord Thurlow in this case of Welles v. Middleton, so much cited by Lords Erskine and Eldon, was not published until Mr Cox reported it in his Chancery Cases, Vol. I. p. 112. It is there stated fully; and he distinctly lays it down, that the Court will, on general principles of policy, set aside any gift made by a client to an attorney, during the time that the attorney has in hands the transaction of the client’s affairs, without any proof of actual fraud, even though made in lieu of his bill; and he adds in his strong way, “That if it were not so, there would be no end of the crushing influence of an attorney* who has the affairs-of a man in his hands.” He set aside the deeds in that case, though there was no evidence of fraud ; and on appeal, the decree was affirmed. In Gibson v. Jeyes, 6 Yes. 266, Lord Eldon set aside the sale of an annuity by an attorney to his client. He said, (p. 271) “ the relation between the parties must be changed; that is, the confidence in the party, the trustee, or attorney must be changed.” He added, that an attorney,, buying from his client, can never support it, unless he can prove that his diligence .to do the best for the vendor has been as great as if he was only an attorney dealing, for that vendor, with a stranger. And in page 277 he adds, that an attorney may deal with his client for an estate; a trustee with his cestui qué trust; but the relation in some way must be dissolved. “ It was the duty of the attorney dealing with the client, to have directed him to get another attorney to advise her, and not doing so, the whole onus is thrown upon the attorney.” And in.p. 280, “an attorney becoming the purchaser shall not hold an advantage gained by his negligence.” '
    ... In Mood v. Downes, 18 Yes. 1.19, it was decided by Lorcj Chancellor that beneficial contracts and conveyances obtained by an attorney from his client during their relation as such, and connected' with the subject of the suit, should stand as a security only for what was actually due, and purchases by an attorney were decreed to be a trust. In page 123 Lord,Eldon says, that an agreement beneficial to the attorney could not stand in a Court of Equity against' a client. And in page 128 he gave to the client the benefit of the purchase of a mortgage of £1,100, bought up by the attorney for £630. He said the question was, whether an attorney, employed 'to recover part of an estate, can, by availing himself of his situation and acting upon the opportunity of bargaining for the purchase of a mortgage which the client might have had, keep the advantage gained, and hold the mortgage not only for £630, which he gave, but for the whole amount of the mortgage, which was £1,100. And so of another portion of the estate, where the attorney really purchased from another person, one Pardoe, such interest as he had in the estate, relief was given to the client. This is a very strong case, and shews how far the Court will go to protect clients from the acts of their attorneys. It is a leading case on the subject.
    In Strachan v. Brander, 1 Eden’s Rep. 303, Lord Nobthington set aside deeds between' a young man ignorant of his rights, and poor, and one who undertook to support him in taking possession of his estate. In our country, fortunately, and to the, honour of the profession, these cases are very rare. In th,e case of Stan-jaine v. Smith, decided by the Court of Appeals, an attorney was prevented from availing himself of a great advantage gained over a debtor whom he had in his power. After this full examination of the doctrine on this subject as illustrated by the decided cases, we come to the application.
    Mr Miles employed Mr Ervin to bring a suit to maintain his claims tó a tract of land. He advised him correctly, that his title is good against Harper, against whom the suit was to be brought, but doubtful as to an outstanding title supposed to exist in the Alstons. Mr Ervin goes on with the1 suit, and whilst that was pending he is applied to by Mr Cartoss, who knew of his employment by Miles, who proposed to him to unite with him in the purchase of the land in question from Milés, which could be got low if he, Ervin, would throw cold water on his title, and thus discourage his expectations. Mr Carloss swears that Mr Ervin said nothing as to the throwing cold water on the title, but concurred in the purchase. Accordingly, whilst Ervin was attending to the suit at Colombia in the Constitutional Court, Carloss applied to Miles to purchase the land, and offered him $300, which, after some negotiation, was accepted. Conveyances were subsequently made to him. ’
    After some time Carloss sold the land to Brown for $2,500, and after further interval Carloss caused one of Brown’s bonds for $900 to be delivered to Ervin, as his part or share of the profit under the agreement to purchase for the joint benefit, which he accepted and now holds. Is he, under all these circumstances, entitled to hold this advantage ?
    I have reflected a good deal cm this question, and have been embarrassed by it. There is no doubt that Mr Ervin thought he was fairly at liberty to make such a bargain and derive the advantage which was obtained. And there is no proof that he entered into the views of Carloss to throw cold water on the title of his client Miles, which he expressly denies in his answer. But it is quite certain that he consented to join with Carloss in the purchase of the land, and was prosecuting the suit at Columbia when Carloss made the purchase, the profits of'which he afterwards shared with Carloss. The relation of attorney and client was subsisting at the time of the sale to Carloss ; and this is the very danger which the policy of the law guards against to avoid the crushing pressure of the power and influence of an attorney over his client. It was'argued that Mr Ervin did not become directly the purchaser from Miles; but that makes no difference. He was secretly concerned with Carloss and got the benefit of the contract; and this concern in the purchase was concealed from Miles, as Carloss expressly swears, from prudential considerations. What those prudential considerations were is not stated. But it manifestly must have been the apprehension that if it were made known to Miles that his attorney was concerned with Carloss in the purchase, it might alarm and induce him to hold back and decline to sell the land at a very low price. It was further argued for the defendant, that Carloss included other lands in his sale to Brown, but it was proved that part of that land was taken off by other titles, and that what remained was of little value. Again, it was .urged that Miles gave only a quit claim title to Carloss for his $300, but that Car-loss gave Brown a warranty title for the price of .$2,500. It must however be remembered that Carloss did not estimate the addition of a warranty in the title from Miles to him as of very great consequence, for he offered only $500 for the land, with a gefteral warranty : yet he got $2,500 from Brown. And it cannot fail to strike the mind, that neither Carloss nor Ervin seemed to have dreaded the outstanding title of the Alstons to the land, which could not be located, and might be defeated by the statute of limitations, since Carloss readily gave a title with general warranty to Brown, in which Er-vin afterwards concurred.
    It is said that at any rate, if complainant is entitled to relief against defendant, he ought to be protected against the effect of the warranty.
    I rather incline to think that this is correct, as un-. doubtedly- the general warranty procured some augmentation of price from Brown.
    
    Upon the whole, I have come to the conclusion, that as the relation of attorney and client subsisted at the time of the purchase of the said land from Miles by Carloss, and as Ervin was secretly concerned with Carloss in that purchase, before divesting himself of that relation, and without putting himself at arm’s length (as the cases quaintly express it), the complainant is entitled to relief, without positive proof of fraud on the part of the attorney.
    What that relief ought to be is now to be considered.
    The complainant requires that the defendant should be made liable for the whole amount of the purchase money, to wit, $2,500, obtained on the sale by Carloss to Brown. But I am of a different opinion. The claim is against the defendant for the benefit which he derived from his concern in the transaction, which he ought not to have meddled- with, whilst the relation of attorney and client subsisted; and that was a bond of Brown's for $900, which, it assumed, was clear of all his share of the expenses.
    It is therefore ordered and decreed, that the defendant do deliver to the Commissioner of the Court, the bond of Brown for $900, or pay over to him the money he may have received thereon; to be held by the Com-' missioner, in trust, for the use of John Miles, until he-shall have secured, to the satisfaction of the Commissioner, the defendant against the effect of the warranty title given by Carloss to Brown, in which Ervin made himself liable to Carloss; and until the farther order of the Court.
    From this decree the defendant appealed and assigned for cause,
    
      First. That an attorney may purchase from his client, if he shews that he acted fairly ; which in this case the decree admits, and the proof establishes.
    
      Second. That the decree is erroneous, in not making Ervin secure on the warranty before he has to pay the money.
    
      Third. That the decree ought to. allow the defendant the benefit of the bale of cotton, and the .money paid. Carloss, and also a reasonable fee for attending to the case against the heirs of ¿Alston.
    
    
      Miller, for the appellánt.
    The doctrine generally, that an attorney cannot buy of his principal, does not apply as rigidly to a mere attorney in Court; as he has no power, as in this case, to sell. And most of the cases, in which the general rule has been laid down, were mere agencies to sell.
    
      Morse v. Royal, 12 Ves. 351. 371, was a case of a deed of gift, which stands upon a principle different from this, and is intended to prevent exorbitant demands. Nor does an attorney stand as trustee; though a solicitor to sell is such a trustee. This was not ipso facto void; it was only incumbent on the attorney to shew fairness.
    
      Drapers’ Comp. v. Davis, 2 Atk. 295, was a case like those of exorbitant gifts or demands by attorneys, who are not to deal with their clients upon exactly the same terms as other men;' but it shews they may contract on certain terms.
    In 1 Cox’s Cases, 134, the broad doctrine, has been laid down: but it is a case of express fraud; and the decision must have been on that ground.
    In 2 Dow’s P. R. 289, it is said an attorney may contract if he shews he has given the same advice to his client, as if he had sold to another person. He mqst shew fairness only. This was the latest English case, and Lords Eldon and Redesdale both concurred.
    May, 1826.
    In Jeyes v. Gibson, 6 Ves. 266, the contract was set aside for unfairness. The attorney must always shew it fair; besides in England, it seems, the attorney is always employed to investigate the value of the premises, which is not the practice here; he knows generally as little, as to the value, as any person in the community.
    In 1 Mad. Cha. 94, it is sáíd a client may make a voluntary gift to an attorney; and the case of Gibson and Jeyes is referred to. .
    
      Butler v. Haskell was the case of a trustee, but there the opinion of the Court went upon the ground of fraud connected with the trust. This doctrine was the rage at one time; but it has been narrowed down a little since.
    In Perry v. Dickson, and in M’Gomen v. M'Guire, 4 Desaus. 486. 504, the Court did support the purchase, it being shewn to have been made at a better price than any other person would have given; and made at auction.
    The principle then is not settled, and this case depends upon the question, “ whether Ervin acted fairly or notl”
    He contended there was no fraud, and collated the evidence to shew it.
    
      Evans, contra.
   Curia, per

Johnson, J.

The Court concur in the opinion expressed by the presiding Judge, as to the liability of the defendant, and will take occasion, hereafter, to express the reasons on which that concurrence is founded.

.Tan. 1827.

The order directing that Brown's bond should be delivered to the Commissioner, or that the money received by defendant should be paid to him, does not and could not imP°se on ^le complainant any imperative obligation to comply with the terms on which it is to be transferred to him. Inconvenience and probable loss might arise to the defendant, if the complainant should refuse or neglect to do so, and no possible injury can result to complainant from a modification of the decree so as to require that the indemnity contemplated should precede the deliyeVy of the bond or the payment of the money. It is' therefore ordered and decreed that on the complainant’s securing the defendant, to the satisfaction of the Commissioner, against his liability on the warranty title executed by Carloss to Brown, and on his liability on his contract with Carloss, that the defendant shall forthwith deliver to the Commissioner Brown’s bond for $900, and pay over to him what money he may have recovered thereon, if any; or that he shall pay the amount of the said bond to the Commissioner, to be by him delivered and paid over to the complainant.

Mr Justice Johnson afterwards, delivered more at large the following opinion of the Court.

' . On a former occasion this Court expressed its concurrence in the judgment pronounced, in this case, by the Circuit Court; but not entering fiilly into all the reason-ings on which that judgment is founded, it has devolved on me to express those on which the concurrence of this Court proceeds. The authorities which have been put in requisition have left a gleaning so scanty and barren, that the labour of collecting them would not be. compensated by any lights they might throw on the subject; and have been so ably and fully digested, that nothing is left to this Court, but to extract from them the true principle, and to apply it to the case under consideration.

The law will not permit an attorney to avail himself.of the circumstances arising .out of that relation, to make a contract, relative to the property in litigation, to the disadvantage of his client.

Every contract between persons holding such relation is not necessarily Void.

The law looks with jealousy upon such contracts, on ac-pount of the influence of the attorney overhis dient. He must has not used judice'ofh*is" client,and was as well the "subject himself, and fun^nd M¡ea price.

The policy of the law is clearly opposed to contracts between client and attorney in relation to property in litigation, and of which the latter has the charge, I think on the soundest reasoning. The value of property we know depends almost exclusively on the certainty of the title; and from the nature of his profession the attorney is supposed to be more competent to judge of it than the client. To discharge the duties which that relation imposes his client must commit to him all the information he possesses on the subject. That relationship too begets the most unlimited confidence, for without it the client’s rights are endangered; and to permit the attorney to use those means to the prejudice of the client would.be to subject him to what is aptly enough termed a crushing influence.

The true rule then I take to be this, that the law will not permit an .attorney to avail himself of the circumstances arising out of that relation to make a contract relative to the property in litigation to the disadvantage of his client. But I do not think that it necessarily follows, that every contract between persons standing in this relation, and about such a subject matter, is absolutely void; nor do I think that such a conclusion is sustained by the current of decisions. Neither of the parties is supposed to be subject to any of those legal personal disabilities, which incapacitate them from contracting, and prima facie they would be bound by their contract; and when a rule of law is interposed to avoid, or to enforce its fulfilment if it is executory, on the maxim, cessante ratione cessat ipsa lex, we are led to inquire whether the case is within the reason of the rule.

In this inquiry, the jealousy with which the law views such a contract is ready to lend its aid in support of perhaps trivial circumstances tending to bring the case within the rule. But the danger to which the client is exposed, from the supposed influence which his attorney has over him, is the reason on which it proceeds-; and the inquiry is, whether he has or has not used it to his prejudice; and if it should appear that the client was as well, 01 better, advised than his attorney on all matters connected with the contract — which, without disparagement to the profession, does frequently happen — and has received a full and adequate price, where, 1 would ask, is ^le hardship or injustice of sustaining such a contract, ^although one of the parties 'should capriciously ask to be absolved from it % Surely there is none: and the rule asneve1' could have been intended to operate on such a case.

This view of the subject is, I think, fully sustained by the reasoning of Lord Redesdale in Cane v. Lord Mien, when in sustaining the judgment of the Court he remarks, that Cane, the attorney, took no advantage of the confidence placed in him by Lord Allen, or of any superior knowledge of the value of the estate, which he acquired as agent. And also by that of Lord Eldon, who in the same case remarks, that it would be incumbent on the attorney to shew, that he had given the same disinterested advice that he would have done if the contract had been made with another -party. In Harris v. Freemenheere, 15 Ves. 42, it is said that an attorney may purchase from his client; but to support such a purchase he must be able to prove, that he paid the full amount that could have been obtained from any other person.

With respect to the cases on which the opinion of the Chancellor appears to have been founded, it may be remarked, that although from the generality of expressions it is to be inferred that the isolated circumstance of the contract being between client and attorney was sufficient to avoid it, yet it will be seen upon an examination of the cases in which relief has been given, that some circumstances entered into them demonstrating the influence which the relationship between the parties had over the contract, furnished either by some positive act of fraud, or deducible from its inequality. I conclude, therefore, that all contracts between attorney and client, in relation to the property in litigation, are not necessarily void on the ground of that relationship; but that to render it so it must appear that it was used to the prejudice of the client. As a matter of proof, it is impossible to lay down any rule as to what will, or will not, constitute sufficient evidence of it. It may consist in all the variety which exists between the most glaring and dishonest frauds, or be deduced from circumstances found in the twilight which separates them from perfect fairness,, aided by the suspicion with which such contracts are regarded. These observations are not deemed necessary to the case under consideration, but. were rendered so by a shade of difference, between the opinion of the Chancellor who tried the cause, and the views taken by this Court, and to fix a principle which is involved in some difficulty.

The features of this case are, if .the evidence is to be credited, too strongly marked to admit of any doubt in the application of the principle. ,The defendant did, it would appear, whilst his client was ignorant of the result of a cause in which the property was in litigation, participate in a contract, by which the client parted with it at an inadequate price, and however disinterested his intentions might have been in a moral point of view, as a legal deduction it must be presumed that there was some cause operating on his mind; and in the absence of any other it will be referred to that which was intended to be guarded against by the rule, and this itself would be decisive of the case. But if the witness Carloss is to be believed, there are other circumstances which ought to weigh. For although he does not state that the defendant yielded to it, he does say, that, he suffered his ear to be polluted with the degrading proposition to throw cold water on his client’s hopes.

The decretal order entered at the last Court has not been carried into execution; and the possibility that the plaintiff may not think proper to give the security, re-quAed as a condition precedent, has suggested the propriety, of providing for that' contingency; nor is the amount secured by defendant on account of the sale , to Brown, either in cash or on bond, precisely ascertained by the decree.

The defendant has also advanced a sum of money on account of his contract with Carloss; and the complainant is indebted to him a bale of cotton by contract, as a fee for attending to the case against Harper in the Constitutional Court, which on every principle of equity and reciprocity he is entitled to have refunded and paid. But' the propriety of allowing him a compensation for any services he may render as an attorney in any future case that may involve the title to the land, is not seen, and is disallowed.

It is therefore ordered and decreed, that the Commissioner do state an account between the parties, debiting the defendant with the amount he may have received on the contract for the sale of the land to Brown, and what may remain dup on Brown’s bond, with interest from the time it became due, and credit him with the amount paid on his contract made with Carloss and the value of the bale of cotton; and that if the complainant shall, within one year after notice of the account so to be stated, enter into bond with sufficient security to be approved by the Commissioner, to indemnify and save the defendant harmless on account of his liability on his contract with Carloss to share any liability to which Car-loss may. be subject on his warranty on the sale to Brown, that then the defendant pay to the complainant the balance that may appear due on the account so to be stated, either in cash or by the delivery of. Brown’s bond for the purchase money, if any thing be still due and owing thereon. But if the complainant shall fail to give such security within the time aforesaid, then the bill to stand dismissed.

Decree affirmed.  