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

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

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

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

The jury found a verdict for the plaintiff.

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

Whether the defendant gave his assesnt to the offer of the plaintiff, is a question which the plaintiff contended the jury ought to infer, from the expressions of the defendant, Let him go on-or from his silence, and suffering the plaintiff to proceed, without informing him of his dissent. Whatever may be the opinion of the judges on this point, it is believed that the question was properly of the cognizance of the jury, and the court cannot say that they were without evidence, or decided contrary thereto.

If the verdict be contrary to law, it is because the contract laid in the petition, and proven to the jury, is one for which the law gives no action.

The question which, therefore, presents itself for the solution of the court, is-

Does the law give an action to an attorney an4 counsellor, prosecuting a writ of error, on a contract to take upon himself all charges that will accrue, for one tenth part, or ten per cent. ont he su, in dispute, in case of success; engaging that if he does not succeed he will make no other charge?

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

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

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

But above all, the Roman law reprobated conventions, by which advocates stipulated to receive part of the thing in dispute. An attorney, or counsellor, says Gothofred, may well advance his money, to carry on his client's suit, and stipulate that he will receive it back with lawful interest. Such a stipulation is honest and lawful: but if he stipulate to receive one half of the thing in dispute, this will be deemed an iniquitous bargain. This convention for a part of the thing in dispute, is unjust. Quod si partem dimidiam ejus quod ex ea lite fuerit, pactum iniquum censebitur. Pactum hoc de quota litis injustum. Digest, lib, 2, tit. 14, l. 53, n. 25, 26. 27.

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

The remuneration of the advocate could not be fixed by any agreement, nor sued for in any ordinary action. Nulla putest denfiniri conventione, nulla ordinaria action peti. Adleg. Si quis ad-vocatorum. Cod. de postulando.

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

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

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

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

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

In Engand the fees of counsel are hanorary in the strict acceptation of the word.

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

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

The fee of a counsellor is a gift of such a nature, that the able client may not neglect to give it without ingratitude. For it is but a gratuity or taking of thankfulness: yet the worthy coun-sellor may not demand it, without doing wrong to his reputation, according to that moral rule: Multa honeste accipi possunt, quae tamen peti non possunt. Sir Jn. Daviss perface to his reports.x 22, 23.

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

Is is established with us, says Blackstone, that a counsel can maintain no action for his fees which are given, not as a locatio vel conductio, but as quiddam honararium: not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation. 3 Comm. 28.

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

AN attorney cannot carry on a cause for another, at his own expence, with a promise that he never willexpect a repayment, unless he carries the casue: or, upon ni purchase no pay. Wood's Inst. 413.

In’ the case of Chesley vs. Beliot, the plaintiff, who was a physician, brought his action for fees, for attending, for a considerable time, on the defendant’s testator. He obtained a verdict, and the defendant procured a rule to shew cause, why the verdict should not be set aside, on the ground that no action laid for a physician, any more that a BARRISTER’S foes.

"The, plaintiffs counsel, admitting this position as Jar it concerns, barrfsters, contended that it never had been determined, nor were there any authority in the books, for putting the claim of a physician’s fees, upon the same footing as those of a barrister. He admitted that, as to the better, it might have been proper that no temptationshould be held out to countenance injustice, that the regulation, as to counsel, was founded on grounds o f public policy, which were totally applicable to the case of a physician. The verdict was set aside. 4 T. R. 317.

Numerous as are the volumes of reports of cases, determined in the courts of these states, those within our reach afford but one single instance, which it is useful to consider. It is the case of Brackenridge vs. M'Farlane. Addison, 49. Tae court there recognised the principle that counsellors are not entitled to any action for their fees. But they added that, as in Pennsylvan% the same gentleman was employed as an attorney nid counsellor, and his services in either of those branchescould not be distinguished from those in the other, a recovery might be had for the value of the services.

In the other states, the codes or reports of which we are able to have access to, it appears the distinction between an attorney and counsellor seldom prevails. In several of them a tariff exists, regulating the fees of the profession. In others, a gross sum is fixed as the only legal compensation, the practiser can receive or demand. In many, as in this, a gross sum is fixed, not as the measure of the lawyer's claim, but as that of the victorious party a~ainst his opponent, in remuneration of what he has paid firt the services of his lawyers.

An act of our legislature, 1808, ch. 30, directs that any attorney of the superior court, "who " makes a bargain or agreement, with a plaintiff "or defendant, dependent on the event of any "suit, to receive any portion or part of the land, "or any other property, that may be in dispute, "or sued for, as a compensation for the services "of any attorney or counsellor at law, shall be for"ever disabled, &c. and the said bargain or agree"ment is hereby declared null and void to all in"tents aud purposes." Sect. 4.

We consider this act, not as making any thing unlawful which was lawful before; but declaratory, ia the description of the fact, and in the avoidance of the contract, of the law, as it stood before its passage; and enforcing :obedience, by annexing to it, as of course, a penalty which the court might before in their discretion, but which they must now peremptorily, pronounce, whenever the case happens.

We think that money is to be considered as included in the word property in the above act. Most men consider money as the best kind of property; and the temptation tb obtain the half, or any other part of a sum of money, is equally as powerful as that of obtaining a part of a tract of land, or any other article of property.

Neither do we think that the legislature made any alteration in the law, by expressly declaring a bargain with either plaintiff or defendant, as the object of the restriction. The Roman law makes no distinction between the advocate of the plaintiff and that of the defendant. Nullum neque pactum neque contractum de lite aut mercede. Neither is there any in the case of the honoraire of the avocat of either party in France. Neither do the English. Wood indeed says: no attorney can carry a cause, on no purchase, nopay. Inst. 413. But he is only a qommentator, and the text of the Roman law, which is in this respect his guide, extends indiscriminately to the advocates of eitheer party.

We admit that, as the act of our legislature speaks of attorneys of the courts of the territory, the suits spoken of in it, must be understood to be those only which are prosecuted in our courts, and the present case, being that of a suit in the supreme court of the United States, is not thereby affected ; but we are under an impression, that the act is not introductory of a new principle. The contract, if it exists, received the defendant's assent here, and the payment was to be effected here: it follows it must be tested by our princi-pies of jurisprudence. These, in our opinion, disallow all contracts between counsel and suitor; they protect the ignorance of the latter against the cupidity of the former, in the same manner as the confidence of youth against the cunning of age; the weak mind of a sick man against the impositions of his physician, 1800, ch. 9, or the distressed situation of a needy one against the extortions of the money lender. Civil Code, 408. Caizergues vs. Dujarreau. 1 Martin, 7.

Constantini, a celebrated Italian lawyer, in his Lettere Critiche, speaking of ladrones occultos, secret thieves, says, "they (physicians) steal also, "when, pretending that they will receive no pay, "unless they cure the patient, they-make him pay "the hundred fold." Rolan tambien con fingir de no querer gratificacion alguna, si no cura ci enfer- mo, haciendo que les paguen entre tanto sus se-cretos, a ciento por uno.

Between client and suitor, special bargains are, generally, what the French call conventions leonires, lion’s bargains. One party is able to ascertain with considerable accuracy, the value of the risk against which he insures : the other is completely in the dark. If the court were to permit such agreements, an interested lawyer would seldom consent to any other;.for none could be so advantageous to him. Seldom would the suitor obtain disinterested advice. Risks, which the party consulted would expect to insure against, would ever be magnified. In the inferior courts, the counsel would decline to avail himself of victorious means of defence, in hopes that the alarms of the client, excited or increased by a failure in the first instance, might prepare his distressed mind to accept relief, at the expence of a considerable part of his fortune, by a bargain on no purchase no pay. Cliens omnia daret patrono, propter metum litis, ut infirmus propter timorem mortis, medico. Ad leg. 6. Cod. de postulando.

The plaintiff has contended that the sum claimed by him, is no part of the thing in dispute, but a specific sum, measured and ascertained by the amount of the judgment. This appears to us a mere play upon words. Judgments rendered in a circuit court of the United States, are examined in the supreme court, when the matter in dispute, exceeds the sum or value of $2000. 1 Laws U. S. 62. Now the judgment in this case was carried up, because the matter in dispute, was a sum of $ 15,000. The plaintiff claims ten per cent, on, or the tenth part of, that sum. Surely this is claiming part of the matter or thing, in

From a full examination and comparison of the principles of jurisprudence, and the provisions made by-the express laws, which we have cited, it appears to us :

1. That, by the Roman law, advocates were not allowed ordinarily to resort to a suit, in order to compel ungrateful clients to do them justice, although in certain cases the court might yield their aid-that no contract was permitted between them; and those by which the advocate stipulated for a part of the thing in dispute, as his reward, were highly condemned and reprobated.

2. That in France, from whence are drawn the original laws of this country, at the period when it was ceded to Spain, avocats were not permitted to sue, and the other principles of the civil law were in their full vigor.

3. The plaintiff has not shewn that, whilst this country was under the dominion of Spain, any Spanish law was introduced, altering the jurisprudence of the colony in this respect.

4. That the common law of England, which is imagined to be the ground work of most of if not all, the United States, except this, the Roman jurisprudence, as to the reward of counsel, is observed with unabated strictness-counsel never being allowed to sue their clients. Attornies, as the procureur~ in France, being allowed a remuneration, according to a tariff established by law; and for the payment of the fees thus allowed, they are indulged with the benefit of the courts of the country.

5. That in most of these states, the same individuals, acting as counsellors and attornies, are permitted to sue for their legal fees, when a statute fixes them; and when there is no statute provision for the value of their services. We are unable to say that, in any case, a suit was brought with success on a special contract.

We conclude:

I. That, in this state, the usage which prevails, having excluded the distinction between counsel and attorney, and the services which are rendered in either of those capacities not being distinguishable, it is much more consonant to tice that the ability to sue, of the attorneys, should be extended to every case of professional services, than to extend the disability of the counsel. That, therefore, a gentleman, acting as an attorney and counsellor at law, may sue for the reward of his services, and claim it, as there is no tariff, according to their real value.

II. That this real value is not to be fixed by any previous contract or agreement, but may be established by the allowance of the suitor, after the services are performed-as in the case of Ellery vs. Amelung's syndics, ante, 244.

III. Bin that it cannot, in any case, rest on an agreement depe~aing on the issue of the suit: much less can a contract, on no purchase no pay, be the ground of an action.

IV. That those principles extend to contracts made and to be completed here, nithough the suit be depending elsewhere. In suits depending in the courts of the state, the attorney or counsel violating them, incurs, besides the nullity of the contract, the penalties ofthe statute.

Mazureau and Depeyster, for the plaintiff.

Ellery, for the defendant.

The present verdict sanctioning a contract between a counsellor and attorneys on an event depending on the issue of a suit, and the reward stipulated for being a part of the object in dispute, is contrary to law and ought to be set aside.

New trial granted. 
      
       We use a Spanish translation, for want of the original. 10 Cartas Criticas, 311.
     