
    MAYNARD'S CASE.
    Where a property is purchased by a third person at Sheriff’s sale, for less than the claim against it, the attorney for the execution creditor does not become a trustee for his client, by buying the property from the purchaser subsequent to the sale.
    Where an attorney purchases property for less than his client’s claim, the client cannot obtain the benefit of the purchase without paying the purchase money.
    Appeals from the Common Pleas of Northumberland County. In Equity. Nos. 66 January Term, 1866 ; and 315 January Term , 1867.
    This was a proceeding in equity brought by Samuel Brady against John W. Maynard, charging Maynard.with having obtained an interest in certain railroad stock, by virtue of his relation as attorney for Brady, and to compel Maynard to account therefor as trustee for Brady. The facts of the case appear in the opinion of the Court below, dismissing plaintiff’s bill and was delivered on September 8th, 1865, as follows per
    Jordan, P. J.:
    "We are asked to make a decree to compel the defendant to transfer to the complainant 1,170 shares of stock of the Bald Eagle Valley R. R. Co., and to compel him to account for and pay over to complainant the whole amount of money received by him as the distributive share of the proceeds of sale of said railroad and premises; and to account and pay over the whole proceeds of the two drafts dated at Philadelphia, February 22, 1862, drawn by Philip M. Price on L. A. Mackey, Esq., of Lock Haven, in favor of defendants, each for the sum of $2,000, or so much thereof as is justly due the complainants; or if said drafts are not fully paid, then to deliver the same over to complainants. Defendant denies that the stock above mentioned, or any part of it, belongs to complainant, and affirms that he has accounted for and paid over to Brady all the money he received for them, and that the drafts are not in his possession and that payment of their amount or any part of it has not been made to him.
    All the material allegations in the plaintiff’s bill are denied by the defendant; and we must therefore resort to evidence, for the purpose of arriving at the justice of the ease% The amount in controversy, the sum demanded of defendant, and the charge of fraud made against him demand from us a careful examination of the evidence, and this we believe we have given it. The view we take of it, and the principles of law involved may not accord with the views of the party against whom we decide, but we must adopt them or do violence to our notions of right and wrong. If our decision was conclusive upon the parties, we would feel greater importance in pronouncing it. If we do injustice, the error we commit will be corrected by a Court, whose decisions may not be impeached for reasons, sometimes urged by counsel, for the reversal of decisions made in inferior Courts. Up to the time of the second sale oí the railroad on January 29, 1861, or immediately preceeding that period, there is no evidence that seems to justify the charge of want of fidelity on the part of defendant towards his client, Samuel Brady, and on the argument of this case, that, if not conceded, was but feebly pressed. The advice given appears to have been with a view to secure to Brady as large an amount as possible, and not with the view of appropriating the earnings of Brady to defendants own use and that of his friends. The claim of Brady was a large one. He was unable to obtain payment from the company without resorting, to compulsory measures. He needed counsel and selected the defendant, in whose legal ability he might well confide. Brady constructed the road. The company were indebted to him in the sum of $52,-400. In 1859, a resolution of the company was passed instructing the president of the company to pay Brady that amount in the first mortgage bonds at 50 per cent, discount from the face of the bond making $104,800. This proposition was made to Brady, and it was while he held it under consideration the defendant was consulted as his counsel for the first time. Brady was advised to accede to the proposition, which he did, and the bonds were delivered to him. On the argument of the cause it was alleged, we think without sufficient evidence to support it, that the defendant and his son-in-law, W. W. Willard, Esq., were law partners. There does not appear to have been any connection of that kind at that time. It is admitted that defendant advised plaintiff to go to Philadelphia and institute proceedings in equity to foreclose the mortgage, and to employ St. George T. Campbell, Esq., to draw a bill for that purpose. A bill for the purpose stated was prepared and filed on January 6, 1860, a decree was made that the said corporation defendants were wholly and utterly insolvent, unable to pay either principal or interest on said mortgage, or the other indebtedness of the company, and after the recital of various other things, Ezra Bowen and George S. Fox, the trustees named in the mortgage, were directed to sell said road and all its franchises at the Merchants’ Exchange, in Philadelphia, on November 29, 1860, at public sale and prescribing the terms upon which the sale should be made.
    On May 16, 1860, a written agreement was entered into between the holders of the first mortgage bonds, to wit, Samuel Brady, John Jones, William Fearon, A. H. Best, Daniel Irvine, A. M. Elder and the Central Bank of Pennsylvania, to employ counsel to file a bill in equity, to foreclose the mortgage and obtain a decree for the sale of the road, and corporate franchises. A blank was left in the agreement for the name of some one who was to act as trustee in purchasing the road. It was stipulated that the parties to the agreement were to have a pro rata in the road and franchises, in proportion to the bonds held by them, and in case the trustee did not become the purchaser, the purchase money was to be distributed pro rata.
    This was a preliminary agreement. The bonds at that time were in the hands of the trustees named in the mortgage. On Nov. 26, 1860, another agreement was entered into between Samuel Brady and twelve others holding stock, reciting' that the road is to be sold on November 27, 1860, under the decree recited above. It is stipulated that Samuel Brady should bid at such sale, such sum as might be' advised and directed by his counsel and J. McCoy and L. A. Mackey, and if he became the purchaser and the sale was confirmed, he was to hold the title in trust for the parties named to the amount set opposite their respective names. It was further stipulated that a new company should be organized by the parties in interest, and the capital stock should consist of $350,000, represented by 7,000 shares of $50 each, and to be divided by the trustee in certain proportions. The parties were to pay a pro rata share of the purchase money as follows: two per cent, on the par value of their stock. A failure to pay was made a forfeiture to all claim to the stock. Any surplus stock that might be occasioned by any default as above specified, or surplus after distribution was to be disposed of by J. W. Maynard, L. A. Mackey and Samuel Brady at their discretion, to promote the interest of the said road, Brady was limited by the parties in his bid to ••$30,000, but bid- to the amount of $51,000 ; and failing to pay and the other parties repudiating the sale, it was set aside, and a resale ordered. The parties were dissatisfied with Brady, and refused to pay, as he had exceeded the authority given to him.
    On December 7,1860, on petition of the trustees a resale was ordered to take place on Jany. 29,1861, upon the same terms as the former sale. Previous to the last sale a partial arrangement was entered into between P. M. Price, D. K. Jackman, Judge Maynard and L. A. Mackey, that Price should become the purchaser of the road at a sum not exceeding 125,000. He was to have one share, L. A. Mackey two, Thos. A. Scott one, Judge Mayrard one, Blanchard and others in Centre Co. one, and as to one other share there was no definite arrangement. If the road was bid off for less than $25,000, the difference between that sum and the sum actually bid, was to be divided ; § to Brady and -J- to Mackey. The arrangement thus made was communicated by Judge Maynard to Samuel Brady on the morning of the day of sale, and at noon the property was sold to Price for $21,000. On Peby. 26,1861, the sale was confirmed and the trustee ordered to execute a deed to Price, the purchaser, which was done. The relation of attorney and client existed at the time the parol agreement was made, that Price should become the purchaser, and at the time the sale was made and subsequently after the sale, Judge Maynard, at,the instance of Brady, exerted himself, though, as it appears, unsuccessfully, to obtain for Brady a larger share than an eighth. Brady applied to Price, but was informed the party was made up, and that that share lay between him and Judge Maynard. The Judge and Brady after talking together some time, met Price and the Judge said to him: “Mr. Brady will tell you what to do about the share. If he concludes to take it, or if we conclude to take it, (the witness, Price, not being certain which) Brady will let you know, and you may'draw- on me for the money.” The witness afterwards stated: “I think he used the word I rather than we.” Immediately after the conversation Judge Maynard left for home, in company with Mr. Mackey, and next morning Price called on Brady for his answer. Brady replied that he concluded to take the share, as he could get no more, and that Price should draw on Maynard for the money. This evidence, the reply of Brady to Price, was objected to by defendant’s counsel. The Court are of the opinion, that it was competent evidence. Brady, as stated by Judge Maynard to Price, was to tell him about the share. There does not appear to have been anything said at the time about whose name the stock should be taken in, and the witness, Price, says, he of course put it down in Judge Maynard’s name.
    At this point in the evidence it will be proper to inquire in what character Judge Maynard was acting at the time it was agreed that- Price should purchaseat the time the sale was made; at the time he made an effort to obtain a larger share than one-eighth for Brady; and at the time he met Price and told him Brady would tell him about the share. The testimony shows, as we think, very clearly that at each and all of these different times. Judge Maynard was acting as the attorney for Brady. Brady had not released him, and Judge Maynard had not disclosed to his client that he was acting in any other capacity than as his legal adviser. Brady was certainly anxious to secure his claim, and Judge Maynard appeared as anxious that he should accomplish his wishes. The agreement that. Price should purchase in his own name, for himself and the parties already named, and each to have the interest stated does not, we think, put the defendant in any different position, as between him and his client, than he would have been had all the parties become the purchasers and the deed from the trustees executed to them.
    In the absence of any evidence that Judge Maynard at the time the agreement referred to above wa3 made, and, the- sale effected, was not acting as the attorney of Brady, what are the legal obligations resulting from the relation of client and attorney ? It has already been stated that Brady selected Judge Maynard as his legal adviser, for the purpose of prosecuting his claim against the railroad company, and compelling payment of his claim if possible. He confided in him as a gentleman of skill, integrity, and ability, on whose honesty he might rely, and in whose legal judgment he might trust. It is quite unnecessary for this Court to speak of the legal skill and ability of Judge Maynard. No one was better qualified than he to counsel and advise Brady. Brady might have consented before the sale of the road or after it was sold, that Judge Maynard should hold the one-eighth in his own right, .and released J udge Maynard from all obligations as as his counsel and legal advisor ; and if we are satisfied from the evidence, he did so, the complainants bill as to this share must be dismissed. But if Brady did not do so, the question is raised to whom does this share belong? Judge Maynard, we think, could not purchase, nor Price for him, and claim the benefit of it for himself to the prejudice of his client. His purchase under such circumstances would inure to the benefit of his client; he will be considered as holding in trust for him. This doctrine is laid down in many cases in our own books, in the books of reports of sister states, and in England. The rule is well established that an attorney may not purchase land sold on an execution in favor of his clients for a less sum than his clients claim. The rule is based upon sound principles of public policy. In Black vs. Leisenring, 5 Watts, 845 ; in Galbraith vs. Elder, 8 Watts, 100,it was held that an attorney conducting the sale of real estate upon an execution cannot purchase the land for his own benefit to the prejudice of his client for a less sum than the amount of the claim. If there are two plaintiffs he may not purchase for the benefit of one, without the consent ot the other. So if an attorney be consulted professionally respecting the title to lands, he cannot afterwards, become a purchaser of these lands from the State or a third person, and set up such title against his client, but the same shall enure to the benefit of such client. Judge Kennedy, who delivers the opinion of the Court in those cases, disposes of the question with his usual ability, and supports his opinion by the reference to numerous authorities.
    The character of the trust which the client reposes, in his counsel, the incompetency of counsel to testify as witnesses, and disclose facts communicated to them by their clients, and the duty of the attorney to watch over and protect his client’s interests, are clearly stated. He remarks: “Principles of expediency, as well as those of justice, require that the counsel, or the attorney, should derive no advantage whatever from such acts, as when done by him, may operate to the prejudice of his client, or occasion a loss to him, and all the advantages which otherwise would have arisen therefrom, to the counsel shall inure to the benefit of the client. Whenever there is a trust to be executed, or a duty to be performed, the person charged with such trust or duty, is not permitted to do any act inconsistent with such trust or duty: a constable or sheriff may not purchase goods at his own sale, and if he delegate his power to another, the deputy stands in place of the principal: Crook vs. Williams, 8 Harris 342; Beason vs. Beason, 9, Barr 284; Beck vs. Ulrick, 4 Harris,499; Greenfield’s Estate ; 2 Harris, 506. Upon principle and authority Judge Maynard, when this property was sold and purchased by Price, for himself and others named, the Judge being one of them, held the one-eighth in trust for his client. The law makes an attorney, who purchases property sold on an execution or other process in which the attorney is concerned, a trustee for his client, and to create this trust it is not necessary that actual fraud should be proved.
    Having stated the duties of a counsel, or attorney to his client, and the position in which he stands if he becomes the purchaser of the property sold on his client’s process, for a sum less than the client claims, we must examine the testimony and from it determine whether Brady before, at the time ot sale, or afterward, relinquished his claim to one-eighth, or did any act that would justify Judge Maynard in holding it against him. The proof of this is, we think, thrown upon the Judge, and when the amount of Brady’s claim against the company is considered, his anxiety to Secure it, and that upon its recovery depended his ability to pay debts contracted by him, and incurred in the prosecution of the work, the evidence of the abandonment of it should be pretty clear, and not left to conjecture. When Mr. Price called on Judge Maynard, who was about leaving the city, after the sale was made, to arrange bis one-seventh of the $5,000 that was to be paid down (one of the eight shares not being provided for) the Judge intimated a doubt about not taking it, and very properly observed that he would not become a party to the purchase, or .have anything to do with it without the consent of Brady; that he would not put it into the power of any client to charge him with taking advantage of his position as counsel. It was urged by Price that he was one of the parties counted on to take the property, and if he refused some other arrangement would be made about it. The Judge then referred him to Brady. Price met Brady and informed him of the subject of the conversation had with Judge Maynard. Brady urged his claim as Judge Maynard had for a larger share than one-eighth, and threatened to have the sale set aside if he did not get it. He was told that he could not get more, and that the share lay between him and Judge Maynard.
    The Judge and Brady then had a short conversation, at which Price was not present, but they immediately met Price and Judge Maynard remarked-: “Mr. Brady will tell you what to do with the share. If he concludes to take it, or we conclude to take it? (witness was not certain which) he, Brady will let you know, and you may draw on me for the money.” Price drew a draft on Judge Maynard immediately after the interview with Brady in which he told him, Price, that he had made up his mind that the stock should be taken and to draw on Judge Maynard for the money. Price states in his second examination in chief, that he believes the language used by Maynard was as he stated in the former part of his examination and thinks he used the word “I rather than “we.” The recollection of Mr. Mackey and Mr. Price, as to .1 udge Maynard’s refusal to take the share without Brady’s consent are substantially the same. Mackey and Price both state distinctly .that Judge Maynard agreed to be one of the parties to the sale; consented to the arrangement of the details of the sale, and named the parties who were to have the different shares. The interview between Price and Maynard was on the morning of the day of sale in Philadelphia. These witnesses state that they knew Judge Maynard was acting as the attorney and counsel for Brady. The draft drawn by Price on Maynard is dated January 31, 1861, at sight for $730.70 in favor of Drexel & Co. Endorsed pay S. Jones, cashier or order for collection, Drexel. Received the within of W. W. Willard in full, J. Damant, teller. This payment was made by Willard’s draft in favor of Price in the West Branch Bank. The balance of the purchase money $1,600 was to be paid within thirty days after the sale of the road. Either the day the money became due or the day before Mr. Willard went to the city on behalf of the share held by Judge Maynard, and told Price it was divided in three equal parts; of which he and Peter Herdic were each to have one, Judge Maynard retaining the other. Willard paid Price the money for two shares, his own and Judge Maynard’s ; but as Mr. Herdic did not arrive Willard drew on him for the amount and the draft was discounted by Jay Cooke & Co. The money then paid and the proceeds of the draft on Judge Maynard make up the one-eighth of the $21,000 for which the property sold.
    The organization of the company was completed on April 1, 1861, by a meeting of Price and his associates, as he called them at Lock Haven, Brady was not notified and was not there ; Judge Maynard was. Price made a conveyance of the road, and the Board of Managers in payment therefor issued to him 8,000 shares of stock at $50 per share. Price issued to the respective parties certificates for the amount of cash to which they were entitled. He transferred 1,000 shares to Judge Maynard, who directed his shares to be issued in three certificates, two of them for 333 shares and one for 334 shares; all in the name of Judge Maynard. The reason the Judge gave at the time was that one share might be transferred to Mr. Willard and one to Peter Herdic. The transfer of Judge Maynard to Peter Herdic for 333 shares was made on the books of the company January 12, 1863, and on March 1,1862, he transferred 333 shares to Mr.-Willard. Surplus stock was issued in 1862 to the original stockholders, and .under the arrangement Judge Maynard was entitled to receive 170 shares on condition that he paid $3 per share.
    On May 13, 1862, Judge Maynard and W. W. Willard, Esq., called on Mr. Mackey in reference to the issue of this surplus stock. Judge Maynard asked to pay the $3 per share on the 170 shares by a credit on Price’s drafts for $4,000 in his favor; to which Mr. Mackey objected. He wanted cash. Mr. Willard said he was ready to pay his third and handed the money to Mr. Mackey. He paid at the same time Mr. Herdic’s third. These certificates were made out in Judge Maynard’s name ; two for 57 shares each and one for 56. Judge Maynard immediately transferred one certificate for 57 shares to Mr. Willard and one for a like number of shares to Mr. Herdic. These two certificates were cancelled and new certificates issued to them. Judge Maynard did not pay for the 56 shares, and the certificate remains unissued. • Mr. Willard in his testimony states that no part of the money paid by him belonged to Judge Maynard; and that Brady had not the slightest interest in it.
    We have thus briefly traced the ease from the time Judge Maynard was retained as counsel for Brady, to the agreements made before the sale was made, to the time of the sale ; its con - firmation, the delivering of deeds, payment of purchase money and distributions and transfer of stock, in whose name entered , &c. We have also shown from the evidence that the relation of
    
      client and attorney existed at these different periods, and the law resulting from this relationship, and it remains in this branch of the case to give our opinion, whether before the sale Brady authorized his attorney to purchase or take an interest in the property sold in his own right, or after the property was sold, thus destroying the trust which the law created in Judge Maynard that he held for his client, and not for himself. We have already referred to a portion of the testimony relating to this, the declarations of Judge Maynard that he would not take the shares unless with his client’s consent, and his referring Price to Brady to know if the latter would take it, and his declaration that he would.
    In the month of December previous to the sale Mr. Brady in company with Mr. Mackey, called on Judge Maynard in his room at Lock Haven. Mr. Mackey, in the interview between them there, urged Mr. Brady, as he could raise but little money, to" have the sale made for the benefit of the bondholders, when Mr. Brady remarked he would leave his interest entirely in the hands of Mr. Maynard, who was then acting as his counsel. It was agreed between Mr. Mackey and Judge Maynard that it would be better Mr. Brady should not appear as a bondholder either at the sale or before the áuditor to make distribution of the proceeds of sale, as he might be held liable for the difference between the two sales. Mr. Price consulted Judge .Maynard as to how the two $2,000 drafts should be drawn ; whether in the Judge’s favor or not and suggested two reasons: First, Brady’s embarrassed circumstances which might subject them to attachment. Second, as Judge Maynard was likely to become a director, he could aid in having the company provide for them, and then release Price from personal liability for them and it was so done.. Brady paid no money, and Price states he looked to Judge Maynard for the money, and that both before and after the sale Mr. Brady claimed a larger interest in the purchase than one-eighth, and asked to be allowed to not to have to raise money on it until it could be realiz ed from his bonds. Judge Maynard on one oct casion, if not more, pressed this claim on Mr. Mackey and Mr. Price, which was as already stated refused and the cash demanded for that interest.
    When the company was talked over and agreed upon, Brady’s name was mentioned as one ot tbe associates. One of the parties said he would have nothing to do with it, if Brady’s name was in any way connected with it, for the reason that his name had been associated with the proceedings of the Tyrone and Lock Haven Railroad Company, and would bring discredit on the new organization.
    In the conversation already referred to between Brady and Price, after Judge Maynard had directed Price to call on Brady, the latter spoke of his desire to have as large an interest as possible in the purchase, and of this share being in whole or in part to his use, and that Judge Maynard had in his hands bonds belonging to him, upon which the purchase money might be raised. Wm. P. Brady, the father of the complainant, met Judge Maynard at Omit’s Hotel, in Harrisburg, and inquired of him what he thought his son would realize out of the road? That he felt anxious to know, and the Judge replied that that would depend upon what the stock would sell for, that he thought the stock would come up.
    J. M. McMinn, who was the Chief Engineer on this road, and who was a creditor of the company to the amount of $4,900 states a conversation he had with Judge Maynard on the morning of the sale, in which the Judge said it was the interest of the creditors to let the road be sold as low as possible, and it was agreed that the witness should see Wm. Underwood and induce him not to get up competition in tbe bidding. This was in the presence of Brady' who was advising with Judge Maynard, as his counsel, and the Judge remarked subsequently that he had exerted himself to prevent competition at the sale. If Brady was not to have an interest in the purchase, this arrangement was no! very well calculated to secure his claim or a small portion of it. ■ It was certainly to his prejudice that competition in bidding should be prevented, unless he was to be interested in the purchase. In a coversation Robert Chatham had in Harrisburg, after the second sale, and while some legislation was had respecting this road, with Judge Maynard, he asked the Judge if he had got Brady’s matter all fixed up — settled. Asked him how he got along with the Brady matter. He, when asked whether he got the money, said no; it was in stock; and if Brady would realize to pay his debts ; he replied that that would depend on the price of the stock. In these declarations of the Judge there is certainly no claim made by him to the stock in his own right; and although he did not state it belonged to-Brady; is not the conclusion forced upon us that it did,, else how could it be applied to the liquidation of his debts. In a conversation which this witness had with Judge Maynard, in Lock Haven, he communicated to Judge Maynard a conversation witness had with Brady, in which he stated that the company had put in his hands bonds amounting to over $100,000 at fifty cents on the dollar, and that if his friends would keep quiet a little while, every man of them would get their money. He was confident he would pay all his debts and have $10,000 left. This conversation was communicated to Judge Maynard, and he said it was correct, and that he had no doubt Brady would pay his debts, said he was his attorney, and'that he would get* or had got that amount oí bonds, and was going to sell the road on those bonds. Witness understood from both of them that the bonds were to be placed in the hands of Judge Maynard, to sell the road as attorney for Mr. Brady. The declarations of Mr. Brady made in the absence of Judge Maynard, unless communicated to the latter or authorized by him, have been rejected.
    John H. Thompson, another witness for complainant, had a claim against Brady, being special bail for him, and understanding he had stock in the railroad represented by Judge Maynard called on him and told him of Brady’s indebtedness to him, his promises to pay the debt in stock as soon as he could get it out of his (Maynard’s) hands, and he replied that if witness got an order from Brady he would accept it, or arrange it.
    We come now to an examination of the testimony, on the part of respondent, bearing on that branch of the case having reference to the ownership of the stock claimed by complainant as belonging to him. The testimony of W. W. Willard and Peter Herdic was objected to on the ground of incompetency from interest, they holding part of the stock claimed. The Court think the objection cannot be sustained as to their competency, but may very properly considered as affecting their credibility. That part of Mr. Herdic’s testimony and Mr. H. E. Taylor’s relating to the conversation with W. H. Armstrong, Esq., is rejected as entirely irrelevant and ought not, we think, have been introduced. It does not appear to have any bearing on the points at issue between the parties. Mr. Armstrong’s testimony is rejected as irrelevant. The conversation between Mr. Willard and Judge Maynard, in the absence of Mr. Brady and not communicated to him, the Court are oí the opinion should not be considered. The witness says that he and Peter Herdic took the share that had been appropriated to Judge Maynard, being the one-eighth interest in all. There appears to be some difficulty in reconciling this statement with that made by Mr. Price, who states, as the Court have already remarked, that Mr. Willard came to the city on behalf of the share held by Judge Maynard, and said it was divided in three equal parts, he to have one, Mr. Herdic one, and Judge Maynard one. After an auditor had been appointed as stated by Mr. Willard, and about the time the first meeting was to be held, Judge Maynard and Mr. Brady called on him, and requested him to represent some bonds of the railroad company before the Master. Judge Maynard, in the presence of Brady, said Brady had bid off the railroad at a former sale, and was unable to pay his bid, therefore his name could not be used; Judge Maynard further remarked it was not necessary for'witness to know to whom the bonds belonged.
    The bonds were placed in the hands of John C. Bullit, Esq., by consent and while waiting at his office, Brady said that he supposed all that he or his creditors would get would be the amount these bonds would get, and the $4,000 Judge Maynard had managed to secure over and above the bid. He said Mr. Maynard had offered him the share he had taken in the new company, but he could not raise the money and he could not take it. Ou being informed by the witness that the Judge did not take it, but that he and Herdic did, Brady said that made no difference who took it, Judge Maynard or his friends, as he had no claim on it. The witness relates a conversation between Brady and his counsel, after this, in the office of witness, in Williamsport, or rather in an adjoining one, then occupied by Judge Maynard, about February 12, 1862. An attachment execution had been issued by R. C. Cummings against Brady with notice to Judge Maynard as garnishee. An order drawn February 12, 1862, was drawn by Mr. Brady on Judge Maynard and accepted, in which Brady states that he wishes to make provision for the payment of some of his debts, and would be obliged if the Judge would pay any balance in his hands, or that might come into his hands for him to his order. The witness states that Brady and Maynard said they had settled their matters, and the only difficulty in the way of closing it up altogether was this attachment. On the next day, February 13, 1862, Judge Maynard paid Brady $400. of the proceeds of the sale of the road, being moneys appropriated to certain bonds of that company placed in the hands of Mr. Willard for collection, &c.
    The testimony of R. C. Cummings has reference to Brady’s lifting the money that was in the hands of Judge Maynard, and received by him from the auditor, and not to the ownership of the shares of stock in controversy. And we think the same may be said of the testimony of Mr, DePui in part. He, however, relates declarations made by Brady soon after the bill was passed, incorporating the Bald Eagle Railroad Company. This act was passed on March 25, 1861. The witness states that Brady said: Price and Mackey had sold him ooi pretty damned well, and he hoped every person connected with the company would lose every cent they had in it. Brady, turning to Maynard, said: “Of course, Judge, I don’t want you to lose anything.” To which Judge Maynard replied: He had not a cent of interest in the road. And Brady said they had cleared him out, and he had no interest in the road.
    It is perfectly clear, we think, from all the evidence, that up to the time of the second sale of the road and afterwards that Judge Maynard was acting as the attorney of Brady. That it was agreed that Price should bid in the property at a sum not exceeding $25,000. That he purchased the road for himself and other parties, (Judge Maynard being one,) under verbal arrangements or understandings with Price, previously made with him — Price. That on the day of sale and after sale took place, Judge Maynard refused to take his share; stating that he would not become a party to the purchase, or have anything to do with it unless with the assent of Brady. Did Judge Maynard afterwards agree to .take the share ? And if he did, did he take it in his own right or for Brady? Who paid the proper proportion of the purchase money and how ? Maynard or Brady, or both ?
    After Brady told Price he concluded to take the share, one-eighth, as he could get no more, Price put the share down in the name of Judge Maynard, and drew on him for the one-seventh of the cash payment of $5,000, and the draft was paid not by Judge Maynard, but by Mr. Willard on February 4th, 1861. Brady paid no money. The balance of the purchase money, $16,000, was to be paid within thirty days from the time of sale and was paid by Willard and Herdic under the circumstances as stated by Price. Either the day, or the day before the money became due, Willard went to Philadelphia on behalf of the share held by Judge Maynard, and stated it was divided in three equal parts, of which he and Herdic were each to have one ; Judge Maynard retaining the other. Willard paid the money for his share, and also Judge Maynard’s and drew on Herdic for the amount of his one-third. The draft was discounted by Jay Cooke & Co., and afterwards paid. The Board subsequently agreed to take a conveyance of the road from Price. He delivered the deed to them, and they issued to him in payment therefor, 8,000 shares at $50 each ; and he transferred 1,000 shares to Judge Maynard. At the same time Judge Maynard directed his share to be issued in three certificates; two of them for 383 shares each, and one for 334 shares, all issued in the name of Judge Maynard. These certificates were issued about April 1st, 1861, and on March 1st, 1862, a transfer was made on the books of the company from Judge Maynard to Mr. Willard of 333 shares, and to Peter Herdic, od January 12th, 1863, for 333 shares. The other 334 shares stand on the books in the name of Judge Maynard. During the year 1862 surplus stock was issued to the original stockholders, and of this surplus stock, Judge Maynard was entitled to 170 shares on the payment of $3 a share. On May 13th, 1862, Mr. Willard and Judge Maynard called on Mr. Mackey in reference to this surplus stock, when Judge Maynard asked to pay the $3 per share on the 170 shares by a credit on Price’s draft in his favor for $5,000, which was refused. Mr. Willard then paid his one-third of the 170 shares, and Mr. Herdic’s one-third. Three certificates were made out in Judge Maynard’s name, two for 57 shares each and one for 56. Judge Maynard immediately transferred the two certificates of 57 each to Willard and Herdic. These certificates were cancelled and new certificates issued to Willard and Herdic. The other certificate for 56 shares Judge Maynard did not pay for and it remains unissued. Both Willard and Price testify that they took the one-eighth share of the stock purchased by Price and paid for it, and that no part of the money belonged to Judge Maynard.
    We cannot, under the facts which have been disclosed, disregard the testimony of Messrs. Herdic and Willard, and reject it as entirely unworthy of belief. Taking their testimony as true, each of them became the purchaser of one-half of one-eighth interest in the road. The receipt from. Mr. Price to Mr. Willard is dated February 23rd, 1861, for $955.36, being the balance for purchase money of one-half of one-eighth interest in the road appropriated to John W. Maynard. Mr. Willard states he paid to Mr. Price $255.36 Herdic’s one-half interest and took a receipt, similar to the oDe given to himself. Herdic testifies to the same thing, and so does Price.
    The sale, as already stated, was made on 26th January, 1861. On the 30th, Price writes to Maynard: “I saw Brady this morning, He says he or you will take the share. To give you another da.yq 1 will not draw till to-morrow, when I will give you a sight draft for one-seventh of the $5,000 with the exchange. I hope Mr. Brady will not take himself.” The draft on Maynard was drawn on the 31st and paid by Mr. Willard on the 4th of February. The letter of Price to Maynard of January 26, 1861 does not state that Brady will take the stock, although Price in his •deposition swears that Brady, after Judge Maynard left the city, said he had concluded to take the share, as he could get no more and that Price should draw on Maynard for the money. If we concede that Brady had concluded to take, was this fact communicated to Maynard, and when and where? Who took this share —one-eighth—Brady or Maynard ? Neither of them took it and neither of them paid for it. It is true that 334shares of the 1,000 stand in the books in the name of Judge Maynard, but unless Willard and Herdic are guilty of false swearing, he had no interest in it. 1'ossibly if an action at law had been commenced by the personal representatives of Brady against Maynard, a jury might find facts sufficient to warrant them in ’finding the value of the stock against him. And to the Court- this appears the proper mode of settling the questions raised, unless the character of the transaction would estop the plaintiff.
    
      We are called upon to compel the transfer of 1,000 shares of stock — not paid for Brady or Maynard, but by Willard and Herdic —333 shares of which have been transferred to Willard and the certificates issued to him and a like number to Herdic of the original stock and also the transfer of 170 shares of stock, one-third of which as already stated was transferred to Willard, one-third to Herdic, which tney paid for, the other third standing on the books of the company in the name of Judge Maynard, not paid for and not claimed by him. We do not think the evidence justifies us in making this decree and it must therefore be denied. On coming to this conclusion on this important case, which has excited a good deal of interest, we have the approbation of our conscience, that it is forced upon us by a careful, and we think unprejudiced examination of all the facts disclosed. Brady’s personal representatives are. not estopped by this decision.
    We are also asked to decree that Judge Maynard account for and pay over the whole proceeds of the two drafts, dated at Philadelphia, on the 23rd of February, 1861, each for $2,000. These drafts were drawn in favor of Judge Maynard on L. A. Mackey and were endorsed thus : ‘'Philadelphia, February 23, 1861. The within draft is placed in my hands by Philip M. Price, iu trust; one-third thereof for L. A. Mackey and two-thirds thereof for Samuel Brady, and the same is hereby assigned to them according to their respective interests. J. W. Maynard.” On November 4, 1862, these drafts were handed to Mr. Mackey at the request of Judge Maynard and remain unpaid in the hands of Mr. Mackey. We do not see how Mr. Maynard can be called upon to pay over the proceeds of these drafts. They are not in his possession. They have been assigned to the persons for whose benefit they were originally drawn, and if they were not paid, Mr. Mackey to whom they were delivered, and who had an interest in them and on whom they were drawn, knew in what way to proceed to realize the amount due them. After Maynard assigned them to Mackey, he ceased to have any control over them.
    We come now to the part of the bill which prays that the defendant may be compelled to account for and pay over the whole amount of money received by him as the distributive share of the railroad and franchises. The statement exhibited by the plaintiffs’ counsel in the argument shows a balance in favor ot Maynard, if he is not charged with the stock drafts.
    There is another aspect in this case, disclosed by the evidence, that we think presents a formidable objection to a decree in favor of the complainant, and that is the arrangement by which, whatever was coming to Brady should be placed in such a condition as to put it beyond the reach of his creditors. The bill sets out that the plaintiff had an interview with defendant in Lock Haven in December, 1860, and defendant advised him he might be held liable for the difference between the first and second sale and that it would be for Brady’s interest not to appear to be interested in the purchase. A second sale of the road took place. Competition as far as could be done by the parties — the road was sold and Brady’s interest was concealed. The bill further states that Brady was induced to authorize Price to put down the eighth share in the purchase in the name of Maynard, instead of his own, by reason of. his probable liability to the creditors of the railroad company for the difference between the two sales.
    The bill also states that the complainant and defendant met in Philadelphia in February, 1861 after the day of the sale. Maynard, still acting as complainant’s attorney and legal advisor, advised Brady to deliver to him the borlds which Brady still held against the Tyrone and Lock Haven R. R. Company, that his interest in them might be better protected by appearing in the name ot a third person from the claims of other bondholders, which accordingly was so done. These are among the allegations made by Brady in the bill, and they show an arrangement or rather several arrangements, all of them in fraud of Brady’s creditors. In Evans vs. Dravo, 12 Harris, 62 it was held that where an instrument under seal was made for fraudulent purposes, the obligees in it would not be permitted to shield themselves from liability by alleging their own fraud. An actor in a fraud is not permitted to prove it; Hendrickson vs. Evans, 1 Casey, 441.
    Decree. And now, to wit, September 8, 1865, this cause came on to be heard and was argued by counsel, and therefore, upon consideration thereof, it is ordered adjudged, and decreed as follows, viz., the bill is dismissed with costs.
    
      Brady then appealed, assigning for error that the Court erred in admitting the testimony of W. W. Willard, because he acted as counsel for Brady’s bonds and because he was interested. Also to the admission of Herdic’s testimony on the ground of interest. Also to the admission of George DePui’s testimony of the conversation between Brady and Mayland when conferring together as attorney and client, DePui being Maynard’s clerk. Also that the Court erred in not giving judgment for plaintiff.
    
      William M. Armstrong, James Armstrong and George W. Young, man, JEsgs., for appellant,
    argued: that communications between attorney and client cannot be disclosed. Story Eq. PL. § 599, 600. Brightly Eq. Sect. 482; Moore vs. Bray, 10 Barr, 519; Rankin vs. Porter, 7 Watts, 387; Sheriff vs. Neal, 6 Watts, 534. Both Herdic and Willard were interested; 1 Greenleaf Evidence Sect. 392. Buchanan vs. Buchanan, 10 Wright, 186. De Pui was not a competent witness; 1 Greenleaf Evidence, Sect. 139, 239, 240. Maynard cannot advise Brady as his attorney to put the property in his, Maynard’s hands and then appropriate it himself and say that Brady is estopped; Sherk vs. Endress, 3 W. & S., 255; Sickman vs. Lapsley; 13 S. & R., 225. Equity should give relief against this fraud, 1 Story’s Eq. Jurisp. Sections 184, 186, 187, 190, 214, 219, 222, 258, 307, 310, 311, 312. The attorney cannot purchase property, in which his client has an interest. Howell vs. Ranson, 11 Paige, 599, Willard’s Eq. 173, 174, 604; Brightly’s Eq., Section 98; Michord vs. Girod, 4 Howard, 503; Bellow vs. Russel, 1 Ball and Beatty, 96; Hall vs. Hallet, 1 Cos, 135; Moore vs. Moore, 2 Mallory, 455; 1 Story’s Eq. Jurisp., p. 359, 360, 361; Beeson vs. Beeson, 9 Barr, 279; Webb vs. Dietrich, 7 W. & S., 401; Greenfield’s Estate, 2 Harris, 505; Fisk vs. Sarber, 6 W. & S., 18; Henry vs. Raiman, 1 Casey, 354. If the trustee fraudulently parted with the trust property the cestui que trust-may proceed against the trustee or both. Story Eq. Pleading, Sect. 221. As to the power to adjust, tbe decree to meet the circumstances of the case they cited: 1 Story Eq. 486, They also cited Brig Struggle vs. U. S., 9 Curtis, 71: Robinson vs. Smith, 3 Paige, 232; Stockdale vs. Ullery, 1 Wright, 486; Crosby vs. Berger, 11 Paige, 377; Chirac vs. Reinicker, 11 Wheaten, 280; Davoue vs. Fanning, 2 Johns Ch., 252; Wormly vs. Wormly, 8 Wheat, 421; Downey vs. Gerrard, 3 Gr., 64.
    
      
      C. A. Mayer, G. M. Wharton & W. H. Lowrie, Esqs., contra, for appellee,
    argued that from the facts as stated in the bill plaintiff cannot recover, as he sets up that he entered into a fraudulent arrangement to defeat his own creditors, and also the creditors of the railroad company; Evans vs. Dravo, 12 Harris, 62; Hendrickson vs. Evans, 1 Casey, 441; Drum vs. Painter, 3 Casey, 148; Abbey vs. Dewey, 1 Casey, 413; Huey’s Appeal, 5 Casey, 219. There is no resulting trust as Brady paid no money; Barnet vs. Dougherty, 8 Casey, 371. Maynard’s relations as counsel ceased when the railroad was sold. If Maynard had taken the stock under an arrangement as claimed, he could not' have compelled Brady to take it and pay him. As the contract must be binding on both parties, it consequently would not be binding on Maynard. At most Brady could only have an election to take the stock or to take the money received from his claim, and he took the money. 2 Story Eq. Jurisprudence, 1097, 1075, 1076, 1080; Wilson vs. Townshend, 2 Vesey Jr., 696; Eshelman vs. Lewis, 13 Wright, 410; Phillips vs. Crammond, 2 W. C. C. R., 445; Downey vs. Garard, 12 Harris, 52; Fisk vs. Sarber, 6 W. & S., 18.
   The Supreme Court reversed the decree of the Court below, and reinstated the plaintiff’s bill, on May 15, 1866, and made the following order, per

Agnew, J.:

It .is therefore ordered, that the decree of the Court below be reversed, and that the defendant do account for all the stock held by him in trust for the plaintiff, and that the record be remitted to that Court, with direction to refer the case to a Master to ascertain the number of shares of the capital stock of the Bald Eagle Yalley R. R, Co., held in the hands of the defendant at the time of the filing of this bill in the Court below, at the time of his purchase of the one-eighth of the Tyrone and Lock Haven Railroad from Philip M. Price; and to take an account of the profit of the remaining two-thirds of said stock, transferred by the defendant to W. W. Willard and Peter Herdic, which would have accrued to the plaintiff, had the same been duly transferred to him before the filing of the bill, on a fair allowance to the defendant of the advances made by him or on his behalf in payment of the said shares of stock; and make a report of the same, together with the form or draft of a final decree necessary and proper to be made by the said Court in this behalf; and that the said Court do thereupon proceed to make such order and decree, as in equity and justice it believes ought to be made, and according to the principles set forth in this opinion.

Robt. Hawley, Esq., was appointed Master and made a report and tbe Court made a decree ordering John W. Maynard to transfer the 390 shares remaining in his name, and that he pay $35,768.24, the profits which would have accrued to Brady on the stock transferred to Herdic and Willard.

Maynard then appealed and Hon. Jeremiah S. Black and C. A. Mayer, Esq., argued in his behalf, that the decree previously made was not to be regarded as settling the questions, involved; Pennock’s Estate, 8 Harris, 268. According to Brady’s own statement he was trying to defraud and hinder his creditors; and was therefore not entitled to equitable relief. At most Brady would only have an election to take the money or stock; and he took the money. When the property was struck down, the amount that Brady was entitled to get was fixed ; and if Maynard subsequently purchased an interest in the road, Brady was not injured.

W. H. Armstrong, James Armstrong and G. W. Youngman, Esqs., for appellee argued that the Supreme Court decided the question on the former appeal; Brightly’s Eq., 530. The bill stated the fraud sufficiently; Story’s Eq., Pl., Sect. 27; Story’s Eq., Sect. 253, 186, 187, 188, 190. The cestui que trust may proceed against the trustee alone where the trustee has improperly parted with the trust property ; Story’s Eq. Plead., Section 221. Maynard, having acted fraudulently, was not entitled to compensation; Swartswalters Account, 4 Watts, 77; Bredin vs. Kingland, 4 Watts, 420; Fisher vs. Knox, 1 Harris, 622. Maynard having refused to account is liable for the highest market price; Reitenbaugh vs. Ludwig, 7 Casey, 131; Bank vs. Reese, 2 Casey, 143; Mayne vs. Damages, 96; Suydam vs. Jenkins, 3 Sanford S. C., 614; Sedgwick Damages, 266; West vs. Beach, 3 Cowen, 82; McAuthor vs. Seaforth, 2 Taunton, 258.

The Supreme Court reversed the decision of the Court below and dismissed the bill on May 14, 1867, in the following opinion by

Thompson, J.:

The principal ground claimed by the plaintiff for a decree against the defendant in this bill, is stated by his counsel as follows : “On the 24th of November, 1862, Samuel Brady, the plaintiff, filed his bill in equity against John W. Maynard, defendant claiming from him certain shares of the capital stock of the Bald Eagle Yalley Railroad Co., which he charged the defendant with having obtained as attorney for him, aud in which he (Maynard) had no interest in his own right, but only as trustee for said Brady, and which he refuses to transfer to the plaintiff.” On this point the bill charges as follows :

“XXX. And your orator further saith, that the said Maynard never at any time had any connection with the business of the said Brady, except as his attorney and counsellor at law, and the stoek, and money, and notes, and drafts, and bonds, hereinbefore referred to, came into the hands of the said Maynard in his capacity of attorney and counsellor of the said Brady, and in no other manner whatever.”

It is a trust, not by express contract, nor as resulting from the payment of money, but solely one springing from the relation of counsel and client, which it is the object of this bill to enforce. I did not hear the argument when the case was up before, being absent at Nisi Prius, but on looking at the paper book of the appellant on that occasion, the appellee now, this was asserted then as now, to be the foundation for the plaintiff’s claim for relief. Indeed, upon no other ground is there a semblance of a case for the plaintiff upon the principal or important matter charged. There are other matters of minor consequence charged in the bill, which will be noticed in the course of this opinion.

On the 26th of November, 1862, as above stated, the plaintiff’s bill was filed. On the 29th of April following, the plaintiff assigned all his claims in the case to A. H. Best; and before hearing, and on the 6th of December, 1863 Brady died, and Best succeeded him in this suit as administrator, and now prosecutes it for the benefit of himself as assignee. So the record stands.

The main inquiries will be, whether the one-eighth interest in the purchase of the “Tyrone and Lock Haven’ Railroad,” taken in the name of Maynard, was as counsel for Brady, or for himself, after that relation had ceased ? Or if the relation continued, was it with the assent of Brady either at the time or afterwards that it was taken by the defendant? If it was acquired as counsel in the pursuit of his client’s demand, and he was not released from his obligation as such to hold it for his client, there is no principle in the law which will or ought to shelter him from liability to account to the latter, and to answer on account of his breach of trust. If the property was his clients in equity he must deliver it up, or pay for it, no matter to whom he may have transferred it. The relation of counsel and client is one of strict confidence and trust, and must be carried through in good faith. The law, therefore, wisely strikes down every temptation to deviate from this requirement, by refusing to counsel the right to acquire any, even the possibility of an interest, antagonistic to that of the client, growing out of the business in which the relation originated. It would, however, be an unnecessary consumption of time to enlarge on the nature of the relation. Every judge has pronounced upon it, and every lawyer knows it; and they well know, and with rare exceptions act upon the knowledge, that the law guards with jeal • bus care every interest within it.

Before proceeding to the consideration of theinquirieB'suggested, there is a preliminary question to be disposed of; and that is whether the decretal order made when the case was before us on the appeal of the plaintiff, must be regarded as a finality upon the questions now before us ; and which, it must be admitted, were, substantially, supposed to have been passed upon then ? The object of the order made, is apparent on its face. It was a direction to the Court below how to proceed in making their decree on the merits of the bill which they had dismissed, and which was reinstated by the order. It is not intended to be denied, however, that this is in substance a re-argument of the questions passed upon then, in order to arrive at the result of that appeal, viz., a reversal of the decision of the Court below dismissing the plaintiff’s bill; but no such decree was before us then as now, in form or substance. But conceding all that can be claimed; to wit, that it is a re-argument before a full bench, this, as everybody knows, is very common in practice, and is never, or at least ought never to be complained of. “What harm can gold catch in the fire, or truth in discussion ?” was an apothegm oí Archbishop Cranmer, not less true in judicial than in philosophic investigations.

The order was, therefore, not a decree. It was neither so said nor so intended, nor so in form. It was a reinstatement of a dismissed bill, with an order of procedendo, and statement of*principles to govern as “equity and justice” would approve in making a final decree. Nothing could deprive the defendant against whom it was to be entered, of his right to appeal, and his right to an argument on every principle involved in it, otherwise the right to appeal would be simply a mockery. It is no answer to this, that the Court has once expressed an opinion on all the points involved, especially as it has not expressed it in the form accepted by the law as evidence of its final determination, namely; by a decree or judgment. It is true the laboring oar is in the hands of the party who undertakes to stem the current of pre-declared opinion, but he has a right to do it if he can, and the Court must listen to the suggestions of possible error in its opinions, if it have any ambition to be regarded as a “Court of justice.”

But it is suggested that the appellee is here relying on the opinion given a year ago in this case, and not to re-argue it. Doubtless he does ,• and so does every party rely on some authority or principle deemed applicable to his case, and yet it often happens that the case relied on is itself not law. If every deóision, once pronounced were to be implicitly followed because once made, error would never be corrected, and to justify this on logical grounds, Courts would have to be invested with imputed infallibility at least. The assent seems very general that Courts may err, and it is not less universal that they are bound to correct their errors as speedily as possible when they discover them. We must, therefore, carefully look into our former opinion, in the presence of the strong appeal made against its accuracy in view of the facts, and see if it be right or wrong.

On the suggestion of surprise or want of notice of an intended discussion of the principles involved, when the case was here before, we can but regard it, after the very able argument presented by the counsel of the appellee, on every point iu the case, rather as an illustration of what might happen without notice, than what did happen in this case. There seems to have been no want of preparation indicated by the paper book or in the oral argument. The learned counsel knew that the case was up on appeal, and that this proffered a .contest which they must abide ;• and they did, with great ability, aided by the opinion of my learned brother in the case, and which had the assent of the whole Court present at the argument. Should the rehearing of the principles of this case result in a different judgment from that expressed, but'not pronounced in a definite form, it will neither be derogatory to the Court nor we hope, prejudicial to justice. That this has occurred in numberless cases, in all Courts, all lawyers know. The case of Pennock’s Estate, 8 Har. 268, is strikingly illustrative of what this Court has thought its duty to be in order to reach justice between individuals. Not only was there one, but two judgments, set aside by a third, and decided opinions in support of each were given. We reverse no judgment or decree in this case if we depart from the former opinion expressed. If we disturb anything it is not in the nature of a right, fixed and settled, but a mere expectancy. Regarding, therefore, what was done in the former argument or hearing, as a mere order, and not a decree, we will proceed to consider the merits of this appeal.

Brady, the plaintiff, had been a contractor on the Tyrone and Lock Haven railroad, and on settlement with the company for work done, made in 1859, he took their bonds at fifty cents on the dollar in payment, the company being without money or other means of payment. This claim being liquidated at $52,000, he received from them $104,000 of their bonds. The company being insolvent, he consulted counsel about collecting this claim against it. The defendant advised that a sale of the road and its franchises be made. To accomplish this, the defendant and Mr. Campbell, of this city, were retained as counsel, and so proceeded as to have a sale ordered by this Court, to take place in this city in Novembe r, 1860. The sale took place, and the property was struck down to Brady, the complainant, for the sum of $51,000, but the amount bid exceeding by $20,000 the sum he was authorzied to bid by parties associated with him to buy, they refused to consummate the purchase, and he not being able himself to do so, the sale failed. His counsel, at his request, proceeded again for a new order of sale, which was obtained, to take place on the 29th January, 1861 At that sale the property was struck down to Mr. Price, for the sum of $21,000. The bid was paid according to the terms oí sale, and the property passed eventually to a new company, called the “Bald Eagle Valley Railroad Company,” incorporated by the Act of 26th of March, 1861. Before Mr. Price bought there was an informal understanding between him and a number of others, that he was to purchase for the benefit of all, and that the property was to be paid for and held in shares, eight in number, by these several parties. There was no specific contract shown in regard to this, but a mere understanding. When the road was purchased and passed to the new company, these shares were divided into stock of one thousand shares each, the par of which was $50 per share. Out of the purchase by Mr. Price, at the second sale, and out of the share set down-to, or in the name of, the defendant, in tliis bill, the difficulty before us has arisen.

■ That the defendant was counsel for Brady up to the time of the sale, and until the money realized from it was collected and- paid over to him, or to his order, is not disputed. He attended the sale, and seems to have made every reasonable effort to. promote the in'erests of his client. He obtained favorable terms for him from the intended purchaser of the road, in an agreement that if the property brought less than $25,000, the amount agreed to be bid for it, he, Brady, should have two-thirds of any sum less than that, which it might bring, in addition to his pro rata on the bonds'held by him. This was a good arrangement for him, out of which he actually realized a sum more than equal to his distributive share upon the bonds. And here it may be as well as in any connection to state that before filing the bill in this case against the defendant, the testimony clearly shows that Brady had received through him as his counsel, every dollar coming to him from the proceeds of the sale , and also, that he had taken out of his hands Price’s draft for his share of the four thousand dollars, the sum less than $25,000 bid for the road, being $2,666,-66. When the decree was asked for below, it is true, if any fact can be proved by testimony, oral of written, that the defendant held no money of the- plaintiff as his counsel, nof had applied any of his money or property to the 'purchase of any share in the Tyrone and Lock Haven road, nor to the purchase of any stock whatever. And it equally clearly appears, that he had applied the money collected for Brady, only as the latter had ordered or directed. Whatever equity, therefore, the plaintiff claims arises solely out of the relation of counsel and client, and not by reason of the application of his money or moneys. This is the ground taken by his counsel, as already stated.

The charges in the plaintiff’s bill against the defendant, in which as essential elements of his case are trust and fraud, are distinctly and positively denied by the answer. Are they, therefore, so fully sustained by the proofs as to demand an affirmance of the decree made below ? Relatively they- should be clearly established. A doubtful equity is like a doubtful charter, it will not come up to what it aims at. The proof should clearly preponderate in the affirmative' over its opposite. Is that this case? When it .was first tried below, the learned judge decided against it, and delivered a very able opinion in vindication of his conclusions. We reversed his decree, and in the present case he has but followed what he understood to be his duty in making it.

Our first inquiry is, whether the proof establishes, according to equity practice, that a trust in favor of Brady arose when the share in the purchase of the Tyrone and Lock Haven Railroad was set down to the defendant, or whether that relation was extended by the parties to take in any purchase of an interest from the successful bidder at that sale ? That this necessarily resulted from the pre-existing relation of attorney to procure a sale of the property will not be pretended. It is not the business of an attorney to buy back property sold even on his client’s execution, where it has already been purchased by a third party. That is the work of an agent, not an attorney ; and that was the exact apparent position here. Are we to assume, in order to establish such a relation, that it had been agreed on that in order to collect as much as possible for his client, the property should -be sold, .and the pro rata should be collected from the purchaser-and then an interest brought back by the defendant from that purchaser ? .There is no proof of this, and the difficulty in the way of assuming it is, that it is not within the ordinary scope of the duty .of an attorney employed to collect a debt; and if .by any process of reasoning it might be made to appear so, in that case the money collected should be in the hands of the attorney. We are outside of all acknowledged relations excepting those of the family, when we assume that one person is bound to buy for another, and pay for it into the bargain. That duty, if it can be inferred,must arise from some express contract, and this implies that there must be proof of such contract. But this is not claimed here. Let us look-somewhat at the testimony and see if there be ground for liability as counsel.

The principal witnesses for the plaintiff on this point are Mackey and Price. If they do not make out that relation, it does not exist. Quod non apparentibus de non existentibus. It is to be noticed that neither of these state more in regard to the arrangement for the purchase of the road, prior to the sale, than that it was understood that Maynard would take an eighth. No contract, agreement, or declaration of his to that effect is proved. Nor is it charged in the bill that any contract with anybody existed. If such an agreement did exist, is strange that it has not been produced or even alleged by the plaintifF. Is it to be inferred from what transpired at and after the sale ? Neither fraud nor a special contract are to be imputed -without proof. Especially as to the former, the proof must be clear. A contract to purchase the stock for plaintiff outside of the relation of counsel, is not alleged. Is there proof that he obtained it in this character by any fraud on his client ?

This can only be affirmed on assuming that he took the share under pretence as counsel and by virtueof his relation as such, and afterwards fraudulently denied that relation. In looking at a case of this kind in which there is an alleged fraud, inducements may be taken into account to explain the conduct of parties if facts are not clear. The proof discloses that there was not any great inducement to invest in this broken-down enterprise at the time it was Sold out. Whether money would eventually be made out of it was far from certain, and depended on many contingencies. One company had failed to raise the means to build the road. There was no certainty that another would be more fortunate. The times were discouraging to all such enterprises ; money was scarce and war imminent. A new charter was to be obtained, and mea of capital, under all the discouraging circumstances, were to be interested in it. It was “a lottery,” says one or more of the witnesses, whether anything would be made out of it or not, and the proof is that for between one and two years after the new organization, the stock sold from $2.69 to $8 per share. In the light of these facts we must consider the testimony in regard to what took place by the parties at about the time of the sale, when the plaintiff’s claim, if ever, originated. Certainly the inducements to invest in the enterprise either on the part of Maynard or Brady, was not very urgent.

Mackey testifies that after the sale was over, and on the same day, Price, the purchaser, called Maynard’s attention to the payment of what he supposed would be his share of the $5,000, he, Price, had paid on the bid, proceeding on an understanding he had that the former would take a share in it. To this Maynard replied that he could not take a share without Brady’s assent; and further said, with some feeling, as the witness thought, “Mr. Brady is my client, and I will not allow him or any other client to place me in a false position, or say that any advantage has been taken of him and he referred Price to him. After some further conversation between these parties, in the presence of Brady, Maynard, as the witness recollects, said : “Mr. Price, I leave this whole matter with Mr. Brady ; if he concludes to take the share, you may draw on me for the money.” In answer to the bill the defendant says, under oath, his language was, “if he (Brady) concludes not to take it draw on me for money.” This is what is to be disproved by the plaintiff on this point. It will be perceived by this testimony that Mackey makes Maynard’s refusal to take the stock for any other than Brady, positive and final, and that Price’s only authority to draw for the money was to be in the event of Brady taking the share, and not him. It this represents the true state of the case, it presents a case of a promise to pay, and not necessarily a case coming within the duty of an attorney, and must have resulted from some agreement not proved, to apply the proceeds of the sale to the purchase of the share. That is rendered unreasonable as a conclusion, because Maynard had no money at that time belonging to Brady, and might not have any for months to come, as turned out to be the case. But after this positive declination to act further on the subject if Brady intended to take it, how can the silence of the latter be accounted for ? If Maynard was willing to undertake to pay for what Brady wanted, why did not the latter take it on the spot ? He was not sure of the speculation, and did not want to risk his money, would be the only fair inference in the light of the surrounding circumstances already referred to. If not then when did he become clear in regard to it.

Price’s testimony differs from this materially. After stating that he applied to Maynard to arrange for the share he supposed he was to take in the purchase, and he repeated in substance as stated by Mackey. Price says : “I urged upon him that he was one of the parties we had counted on’ to take the property, and if he declined we should have to make other arrangements.” Maynard then referred him to Brady. That he communicated to him what Maynard said about taking a share. In reply, Brady claimed a larger share, and witness told him he could not have it ; that there was one share only between him and Maynard. After some further conversation between them, and as Maynard was about starting to the cars for home, he said to witness, according to his best recollection, Brady being present, “Brady will tell you what to do about the share. If he concludes to take it, or if we conclude to take it,” witness cannot say which, “he (Brady) will let you know, and you may draw on me for the money.” He further states that Mackey and Maynard were in a hurry and immediately started for the depot. The next morning the witness says he called on Brady, that he told him he had “concluded to take the share as he could not get any more, and that I should draw upon Maynard for the money. Nothing was said about whose name the share should be taken in, and I, of course, put it down to Judge Maynard’s name and drew upon him, and the draft was paid.” It is apparent from this that unless Mackey’s account of it be accurate, Maynard paid without knowing anything about Brady concluding to take the stock. According to Price’s testimony, he might have paid it under the well grounded belief that he was taking it for himself, and according to both, here was an open, plain declaration and notice to Brady to determine for himself as to whether he would take the stock or not. How can fraud be inferred from this ?

But Mr. Price’s memory is in conflict with his contemporaneous correspondence. His testimony is taken two years and a half after the transaction. His letter to Maynard about Brady’s decision in regard to the share, is the day after, when Brady, it is said, made his decision about it. The discrepancy cannot be attributed to anything other than want of memory. I would not attribute it to falsehood : but it exists, and the letter being written in accordance with the desire and the busii ess of the parties, was evidence. The letter is dated July 30th, 1861, the day after the sale, and is addressed to the defendant; it says : “I saw Mr. Brady this morning. He says he or you will take the share and after informing the defendant he would draw on him the next day for the one-seventh of $5,000 instead of one-eighth, concludes thus, “I hope Mr. B. will not take himself.” This it must be admitted, is not reconcilable with this witness’ testimony nor his testimony with it, but exactly accords with what he was authorized to do in case Brady did not take the share ; to put it down to Maynard, draw on him for the money, and apply it in payment of the share so set down to him. This he did after writing the defendant a letter containing the declarations of Brady, and his own, showing as plainly as could be that the former had not concluded to take the stock. That Price so understood Brady, is not to be doubted, if we allow the letter to speak to the point. After stating that Brady said he or you would take the share, he adds at the end of the letter his hopes “that Brady will not take it.” “ Will” expresses a future action, and shows that Brady had not taken it in the present tense. Upon this information he drew on Maynard, and he accepted his draft and it was paid.

All this testimony of Mackey, Price and the letter, goes no further than to show at the utmost, that Maynard said he would pay for the stock if Braly took it. If he did not take it, he would take it himself. This was declared openly and directly to Brady. We may not surmise that something else was said of which we have no proof. If we did, who shall say how much beyond or below the mark we might fall, and how is it to be determined that it is neither, but that we have just hit the mark ?

The object of the testimony was to support the bill in the allegation that the defendant, in his character of counsel, obtained the stock, and it was therefore the plaintiffs. The sale had taken place and a third party- had become the purchaser. Maynard was not a purchaser. Nobody' says that. Price says: “We counted on him” to take a share, but if he did not we will have to make other arrangements. Neither the plaintiff in the bill, nor any witness testifies that Price bid for Maynard. If he was a purchaser through Price, it was not proved. Nor did Mackey or Price allege it at the moment Maynard declared he would have no interest in it or be a contractor for a share. Is it unreasonable to suppose they would have alleged it if such had been the case ? But Price only says, if he did not take it as “counted upon,” we will have to make other arrangements, and to Brady', “there is one share between you and Maynard,” you had better settle the matter between you.

Not being shown to have been an original purchaser, Maymard’s legitimate concern pursuant to his engagement to collect the money for Brady^ was to look after that. It had gone into one set of hands and the property into another. Which was he to follow? The money, of course. His client had a right in that, and none in the other. He could not under the trustee’s sale, claim to be; the owner of the property and money both. Now, if with the assent and at the instance of his client, he recovered the money and paid it over to him, or, if that w'as intended to be the course to be pursued at and after the sale, and that it w’as, may be inferred from its having been pursued, as counsel it was not Maynard’s duty to purchase any interest in the property for him. He might become his agent for that purpose, but that is not alleged. He might also, as counsel, have undertaken to apply' the money he was collecting to that purpose, but that is not proved. It is disproved by all the testimony ; that shows that the money was collected by' Maynard and jaid over to Brady, or to his order, and none of it applied or retained for any such purpose. The proof does not show that the property should have brought more than it did, nor that a single bidder was deterred from ©r induced not to bid, by the efforts of the defendant. As already seen, it was not a time in which such a sale would command active competition. In November, previously, parties had agreed to go to the extent of $30,000 for the road and franchises. On the 29th of January following, it was sold for $21,000. It is in the current history of the times, that there was then a darker, deeper shade over business, money, and the prospects of the country, than in November, or at any time preceding ; and this will account for the diminution in price from what it had been estimated at in November, and what it was expected to, and did bring in 3 any. without assuming that it resulted as a part of a scheme or fraud by the defendant, in order to purchase an interest in a doubtful enterprise.

In order to hold the defendant answerable under the bill, the plaintiff was bound to show that he fraudulently and without plaintiff’s knowledge, was secretly a purchaser of the property with others, after depressing its value, thus defrauding him of what he should have otherwise realized from it on his claim. This he has not done. On the contrary, if $25,000 was a fair bid for the property, as we may suppose it was in January, when $30,000 was considered the full value in November, every dollar bid less than the $25,000 was to be seventy-five per cent, gain to the plaintiff by arrangements of his counsel, agreed to and received by him. I see not how, therefore, he could allege fraud in this against the defendant. If there was, he was a participant. But it has not been shown that he was a purchaser at all when the property was struck down, nor does his claim to the share rest on that, but on what took place after the sale. That was not the result of any secret arrangement. It we may believe the plaintiff’s witnesses, whatever advantage the defendant might have been able to secure under the purchase, he openly ottered to the plaintiff. If the value of the property had been depressed by efforts of the defendant, and a share would cost less for that reason, the advantage was offered to the plaintiff. He failed to decide to take it, and so far as we can learn from the testimony, Maynard was never notified by any one that he had elected to take the share. Price does not say he informed Maynard, and certainly his letter written at a time when it is alleged he did decide, gave no information to the defendant of any election he had made. Without pursuing this line of remark further; in conclusion, on this aspect of the case, we are unable to see any ground upon which to hold the defendant answerable in the relation of counsel., or that the relation existed in the purchase of the share of the Tioga and Lock Haven Railroad, or that he was the purchaser of any interest until after the sale, when the plaintiff’s money had been made out of it. Nor evidence of any fraud practiced by the defendant, so as to turn him into a trustee ex maleficio.

I have thus far treated the case without reference to the subsequent acts and declarations of the parties in regard to the matter principally in contest, and here, it seems to me, that those of the plaintiff’s intestate are irreconcilable with the present claim. As soon as was proper after the sale, he presented his bonds to the master, and claimed his distributive share of the proceeds. After the adjustment of his share, and its receipt by counsel, the defendant, he commenced drawing it out of his hands, and continued until all was drawn, without referring to any claim upon the share standing in the defendant’s name. This conduct accords with no theory excepting that of the appellee, viz., that he well knew he had no claim to anything but the money under the sale. So his acts in opposing the passage of the bill to incorporate the new company, and the declaration in his letter of the 8th April, 1861, in which he threatens, if he fails in obtaining a contract for building the road under the new company, to “open the batteries and throw shell as well as balland his subsequent declaration that he hoped the new company would lose every cent they had put into it, excepting the defendant, whom he “did not want to see lose,” and many other expressions of similar import, all corroborate and substantiate the defence. It is contrary to all experience-that theowner of property-should seek its destruction or injury, when the result would in no way benefit him ; and in a doubtful case it is always powerful evidence to raise an impression that the alleged ownership does not exist.

It is said, that on the other side, these acts and declarations are persuasive the other way, and that like algebraic equations they balance each other, and may be stricken out. I have examined them and think the conclusion not to be adopted. One witness asks defendant if Brady got money from the company, and he says, defendant replied “stock.” If the defendant did say that, the fact was otherwise. It is incontestable that he got money from the company he had sued, and did not get. any stock from that company. It is, therefore, probable that the reply was misunderstood or misremembered. So of the remark, if made, that it would depend on the price of stock if he could pay his debts. This was not necessarily referable to the question of ownership of the stock. It may have referred to it, but it is equally possible it may not. So, his saying he would accept an order for a sum of money, which was small, in favor of the witness, if Brady would give it, did not imply that he held stock belonging to Brady. It did imply either that he knew Brady would not give it, or that he had money to pay it with. Brady never did draw the order. The offer of defendant to take one hundred and seventy dividend shares of stock from the new company, and credit the company on Price’s draft is relied on as evidence of an admission that the original stock belonged to Brady. The testimony shows that these drafts were still held by the defendant for plaintiff, and that he wanted to have them applied in payment of the stock at the request of Brady. The company declined the transaction, and demanded three dollars per share in cash. No one can fairly infer, we think, from any one or all of these declarations, anything inconsistent with the defendant’s position in regard to the share in question, while those of the plaintiff are wholly inconsistent with us.

While some of us, in favor of reversing the decree made in this case are entirely satisfied with these views and their sufficiency to require that result, the majority of the Court are clear that even if there was an arrangement about the share to be purchased in tha.name of. the.,counsel for the .defendant, it must have been with an understanding that the money to be collected was to go in payment of it. We cannot subscribe to the doctrine that counsel must buy and pay for property for the client as a result of the relation. We, therefore, see no equity in the plaintiff in the absence of payment, or the pledge of the means of payment. No title accrued to the intestate by reason of the application of any of his money to the purchase. This is certain. He drew it all out long before he made the present claim. If it were intended so to be applied, it was not, and the whole scheme on that basis must be regarded as having been abandoned. “Acts speak louder than words,” is a proverb, and such acts as these go far to show that not only had the plaintiff no good claim, but was willing to press one that was groundless and unconscionable, without a pretext that he had paid anything for it directly, or suffer a loss on account of it.

I have treated this ease on the grounds on which it was placed by the plaintiff’s counsel, without regard to any alleged interest in Willard and Herdic. I see nothing to have required them to have been made parties, nor were they incompetent as witnesses. The bill sought no decree against them. They never made any claim to the three hundred and thirty-three shares of stock yet in the defendant’s name, and which the bill prays that defendant might be required to transfer to the plaintiff, nor were they required to account for profits.

As to the prayer for an account, by the plaintiff, for money collected by the defendant from the Tyrone and Lock Haven Railroad Company, and for the amount of Price’s drafts in his favor, we will say but little. It is clear, beyond all controversy, from Brady’s own receipts, vouchers, and ackowledgments, that all had been accounted for and paid, and nothing whatever remained in the defendant’s hands from that source, before he swore to and filed his bill. Further notice is unnecessary.

Notwithstanding the length of this opinion, there are many things which were referred to in argument to which we have given no special notice, but which have been duly considered, and do not effect the general result. A majority of us thinking that the testimony in the case did not sustain the plaintiff’s right in the decree below, it is accordingly reversed at the cost of the plaintiff, and the bill is dismissed.

Woodward, C. J. concurred with the foregoing ; but in addition said that: The pleadings and evidence demonstrate beyond all doubt, that Brady, deeply insolvent, intended either not to- have any beneficial interest in the stock in question, or else to cloak it from his creditors. His shuffling and equivocal conduct will bear no other construction. And his assignment of this very equity suit, exhibits the same purpose to place the fruits of the speculation beyond the reach of his creditors. That a Court of Chancery will, not interfere to relieve a fraudulent debtor from the consequenees of his attempt to delay and hinder creditors, is a first principle of equity jurisprudence. Who seeks equity, must come into Court with clear hands. If he has bound himself, for fraudulent purposes ; equity will leave him bound. Brady, in the best view of his case, comes into Court under this cloud, and if the other reasons for dismissing his bill be not sufficient, it ought to be dismissed, I think on this ground.

Note. — As to transactions between attorney and client, see Evans vs. Ellis, 5 Denio, 640; Brock vs. Barnes, 40 Barb. 521; Howell vs. Ransom, 11 Paige, 538; Greenfield’s Estate, 2 Harris, 489; Post vs. Mason, 91 N. Y. 539; Yeamans vs. James, 27 Kansas, 195; Stout vs. Smith, 98 N. Y. 25; Alwood vs. Mansfield, 59 Ill. 496; Kisling vs. Shaw, 33 Cal. 425; Gibbons vs. Hoag, 95 Ill. 45; Ryan vs. Ashton, 42 Ia. 365; Byers vs. Surget, 19 Howard, 303; Whipple vs. Barton, 63 N. H. 613; Shipman vs. Furniss, 69 Ala. 555; Huguenin vs. Basely, 2 W. & T. Leading Cases in Equity, 1156 and note; Dunn vs. Dunn, 7 Atlantic Reporter, 842 and note; Elliott vs. Taylor, 6 Atlantic Rep. 917.  