
    Mooney against Lloyd.
    December.
    A suit cannot be sustained by a gentleman of the bar against his client, for a compensation for services over and above the attorney’s fee allowed by act of assembly.
    But if the client gives a note or bond for such compensation, an notion lies thereon.
    Physicians may sue for their fees.
    In Error.
    ERROR to the Court of Common Pleas of Philadelphia county.
    Lloyd, the plaintiff below,
    was an attorney at law, and brought- this suit against Mooney, to recover for professional services. The only question raised upon the record returned with the writ of error, was, whether an action can be maintained by a gentleman of the bar against his client, for advice and services in the trial of the cause, over and above the attorney’s fees allowed by act of assembly. The charge of the Court below was, that such action might be supported, and a bill of exceptions was taken.
    
      E. Ingersoll, for the plaintiff in error,
    contended, that the compensation payable by a client to his counsel, for services rendered in that capacity, is merely an honorary debt, depending upon the will of the client, and not recoverable by action. This has been the ‘settled law of England for a long time. 3 Black. Com. 28. Thornhill v. Evans.
      
       Brownl. 73. 1 Ch. Rep. 38; and though the professions of a barrister and attorney are kept separate in that country, while in this State they are united, the reason of the distinction between legal fees earned as attorney, and that gratuity which is bestowed for services as counsel, exists with equal force here. The character and honour of the profession, as well as the ties of confidence between its members and their clients, will be best maintained by deciding, that their compensation is not a matter of debt, but the spontaneous reward of their talents and services.
    
      D. P. Brown, contra, contended,
    that the law of England is the result of their peculiar situation, and is not applicable here. It is founded upon the principles which appear at one time to have governed the Roman practice; which principles were adopted originally, on account of the various abuses practised upon clients by the lawyers of that republic. Their fees, as we are informed, were immense ; they even made a traffic of their perfidy : Tacitusreferring to their corruption at that period, observes “ nec quidquampublica merces turn venóle fuit, quam advocatorum perfidiaT Such flagrant violations of professional integrity, rarely, if ever, occur with us ; and therefore the adoption of the rule to which they gave birth, would be useless, if not preposterous. The Romans passed a decree, forbidding their senators to perform publicly in pantomime, under very severe penalties; this law arose out of the strong theatrical propensities of the people of that day ; and particularly of the senate; but assuredly no man will therefore contend, that a similar enactment should take place with us, where there are no such evils to require such remedies. — “ The reason ceasing, the law also ceases.”
    In Rome, their Defensores, and Pragmatici, were in a great measure, if not entirely, distinct from each other, and answered to the counsellors, and attornies in England. Of the right of attornies to recover fees in a suit, there can be no doubt; it is not contended, that their compensation is to be received as quiddam honorarium. Now with us, attorniea are counsellors, and counsellors attornies; so that to say, that a counsellor shall not recover, is actually to deprive the attorney also, of the just fruits of his labour.
    Further. — Although the Roman orators, at least during the Republic, received no fees as a matter of right, it was the custom of the clients, and that custom formed a law, to make them frequent and valuable presents, and bequeath to them “ rich legacies,” in requital of their services.
      Lucullus informs us, that in this way Cicero, in the course of a professional life, certainly not the longest, amassed a fortune exceeding two hundred thousand pounds sterling. Even under the Justinian code, if nothing were given or promised, a reasonable compensation might be sued for.
      
    
    It is said, that in England, fees to advocates, are strictly an honourable debt, and are not recoverable at law. So are physicians fees there; but in relation to the latter, with us, the reverse has been the practice; why then should it not be in regard to the former ? — I conceive it is. In Breckenridge v. M‘Farland,
      
       this point arose, and it was decided by Judge Addison, that a suit for counsel’s fees, in civil cases, might be maintained. In Jones & Clench v. Hall, lately determined in the District Court, it was held, that counsel might retain a reasonable compensation for his services, out of money recovered for his client. To strengthen, these authorities, it will be found upon examination, that there is scarcely an approved book of forms, either English or American, which does not contain a declaration, founded upon a claim for counsel fees. In addition to all this, it was stated in the Court below, as appears by the record, by Judge Rush, a man of great experience, that suits on notes and bonds given to gentlemen of the bar for their services, have been brought, and recoveries had thereon, for fifty or sixty years past. Now, the consideration of these securities, is open to enquiry, and either must be in itself a sufficient basis for a suit, or it is an insufficient support to those instruments, upon which the suit may be instituted. The engagement to pay, derives its validity from the consideration ; if then there were no consideration calculated to sustain a quantum meruit, an engagement or promise is worthless, and will not support the action.
    As to the honour of the profession, according to my views, proceeding upon a quantum m.eruit, in which nothing is recovered hut the fair value of the services rendered, is quite as honourable to the profession, and certainly more conformable to reason, to the convenience of the community, and to the dictates of a humane and benevolent policy, than the practice of taking notes; which may, and frequently does, operate very oppressively upon the incautious and the indigent. Men surrounded by difficulty and distress, are seldom very patient or prudent in their attempts at extrication. Present evils triumph over philosophy. They consequently enter eagerly into any prospective engagement, no matter how destructive, which may possibly have a tendency to contribute to their immediate relief and advantage. Establish the doctrine for which I contend, and this grievance, and a thousand others, are at once avoided; adopt a different course, and the door is opened to fraud and oppression, rendered doubly odious, by all attempts to disguise them, in the garb of law.
    
      
       2 Atk. 332.
    
    
      
      
        Cooper's Inst, 597.
    
    
      
      
        Ibid.
      
    
    
      
      
        Black. Com. 28.
    
    
      
      
         Addison's Rep. 49.
    
   The opinion of the Court was delivered by

Tilghman C. J.

The single question in this case is, whether an action can be supported by a gentleman of the bar, against his client, for advice and services in the trial of a cause, over and above the attorney’s fees allowed by act of assembly. Without doubt no such action lies at common law. The connection between counsel and client, in contemplation of law, is honourable indeed. The counsellor renders his best services, and trusts to the gratitude of his client for reward. In the language of Blackstone, “ a counsel can maintain no action for his fees, which are given, not as locatio vel condueño, but as quiddam honorarium ; not as a salary, or hire, but as a mere gratuity, which a counsellor cannot demand, without doing wrong to his reputation.” The opinion of Blackstone, is founded on the best authority. In the case of Moor v. Row, 1 Ch. Rep. 38, (in the 5th year of Charles I.,) a counsellor’s bill for fees, was dismissed, on demurrer. In Thornhill v. Evans, 2 Atk. 332, Lord Hardwicke declared, that the Court would not suffer a gentleman of the bar, to maintain an action for fees. This then is the law which our ancestors brought with them when they emigrated from England: nor did they or their successors think proper to alter it. It was never altered by act °f assembly, nor by practice; for it is not pretended that an action for fees, was ever sustained, before our revolution, or in this Court, since the revolution. Actions have indeed been supported on notes and obligations, given by clients for services rendered. But that is quite a different thing. A client is under no obligation to give either bond note or money. But he may give all, or either if he pleases ; and if he does so, it is lawful for the counsel to accept them ; and in case of non-payment, ah action may be supported, because the consideration is lawful. In England, physicians are placed on the same honourable footing as counsel. They cannot sue for fees. But to prevent improper inferences from being drawn with respect to physicians, we think proper to say, that as regards them, the law is held differently in Pennsylvania, and this difference is founded on practice, and act of assembly.

As to the gentlemen of the bar, although some plausible arguments have been urged in support of their action, yet upon the whole, it appears to the Court, that the policy of refusing this remedy has not been adopted without great consideration. The field is ample, and would admit of a long discussion. But it is enough for us, that no principle of law has been more clearly laid down, and that there is sufficient evidence of its being one of those principles which was adopted on the settlement of Pennsylvania. We are therefore of opinion, that the action cannot be supported, and the judgment should be reversed.

Gibson J. and Duncan J. concurred.

Judgment reversed.  