certainty, for manufacturing establishments had experienced within a few years great vicissitudes of alternate prosperity and depression. But what is most material is, that $5,000 is the very estimate (if the testimony is to be believed) which the plaintiff himself put upon the mortgaged property with a full knowledge of its situation. That testimony stands confirmed by his conduct upon various occasions; by the additional security of $8,000 required by him at the time of his attachment, and by his subsequent offer to sacrifice $5,000 of his debt, if the debtor or his friends would secure an absolute payment of the residue. This conduct could not but produce some impression upon the mind of his attorney; and it is surely no proof of fraud that his estimate, however low, is supported by that of very numerous respectable witnesses, and has commended itself to the plaintiff's own judgment. Nor should it be forgotten, in this view of the case, that if Joshua Head's execution had not been satisfied by the sale of the equity of redemption, it might have been satisfied by a levy on the other real estate, of which the plaintiff has now had the entire benefit. It is not true, therefore, that the equity of redemption has been created or sold at the plaintiff's expense. And yet the whole fabric of fraud, which the bill so studiously constructs, rests on this as its principal foundation.

There are other circumstances in the case which have been relied upon by the parties either to fix or to repel fraud; but I forbear to comment on them. The merits of the case stand on those which have been already discussed; and if those fail, there is an end of the controversy. I feel entire confidence that it is my duty to dismiss the bill, and I shall pronounce and decree accordingly. Bill dismissed.

§ 175. Privileged communications.- Confidential communications between client and attorney are not to be revealed at any time. The privilege is not that of the attorney but of the client, and it is indispensable for the purposes of private justice. Whenever facts are communicated by a client to counsel, solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose them, and the law holds their testimony incompetent. The fact of the relationship may be proved by the attorney. Chirac v. Reinicker, 11 Wheat., 294.

§ 176. A communication made by a client to an attorney acting professionally is privileged, and the attorney will not be permitted, against objection, to disclose such communication in the courts of the United States, and under its laws relating to the competency of witnesses. The protection of confidential communications made to professional legal advisers is dictated by a wise and liberal policy. If a person cannot consult his legal adviser without being liable to have the interview made public the next day by an examination enforced by the courts, the law would be little short of despotic. It would be a prohibition upon professional advice and assistance. Connecticut Mutual Life Ins. Co. v. Shaefer, 4 Otto, 457. $ 177. disclosure permitted. In a case where legitimacy and marriage are in issue, an attorney, who, by the alleged husband's directions, prepared a will which speaks of the children in question as his natural children, and provides for them, may, without violation of professional confidence, disclose what was said to him by the testator in conversations preceding and connected with the preparation of the will. It cannot be said to be for the interest of the testator to exclude any testimony in support of what he solemnly proclaimed and put on record as his will. The client may in all cases waive the privilege either expressly or by implication, and in this case the waiver is as direct and explicit as it could have been made by words. Blackburn v. Crawfords, 3 Wall., 192.

§ 178. Notice of fraud imputable to client.- The knowledge of an attorney in a particular transaction is the knowledge of his client; and this is true where the client, without participating in frauds of the attorney, observed them and stepped in and availed himself of them. May v. Le Claire, 11 Wall., 233.

§ 179. of fraudulent intent to prefer.- An attorney who defends a just claim in behalf of an insolvent debtor, and as attorney for another creditor of the same debtor obtains a judgment by default in a later suit while the first is still pending, is held to have knowledge of the debtor's fraudulent intent to give preference, and such knowledge is imputable to his client. Wight v. Muxlow, 8 Ben., 57.

$ 180. of fraud in bankruptcy.— An attorney employed by a creditor to collect a claim procured the debtor to allow judgment to be taken against him by default, with knowledge of the debtor's insolvency and of his intention to work a fraud on the bankrupt law. Held. that the knowledge of the attorney was the knowledge of the creditor. Rogers v. Palmer, 12 Otto, 264. § 181.

instructions to officer.- A ministerial officer is not presumed to know the rules as to the discharge of sureties from liability; and where an attorney's acts are so misleading that he takes a replevin bond which is void, such erroneous instructions are imputable to the attorney's client, who cannot recover against the officer on his official bond for his blunder. Rogers v. The Marshal, 1 Wall., 651.

§ 182. Where an attorney adopts the action of an officer who has deviated from the strict line of duty he will thereby bind his client. Ibid.

§ 183. of unrecorded deed.— Notice to an attorney of an unrecorded deed on land on which an attachment is levied in a pending suit which he is conducting is notice to his client. Polk v. Cosgrove, 4 Biss., 440.

$ 184. of insolvency.- Where an attorney of a creditor, in prosecuting a debtor to enforce payment of a debt, learns, in a professional capacity, from the debtor, of his insolvency, the knowledge of the attorney is the knowledge of the creditor. Mayer v. Hermann, 10 Blatch., 262.

§ 185. A commercial agency being employed to collect a claim, sent it to an attorney for collection. Knowing the debtor to be insolvent the attorney persuaded him to confess judgment, and having collected the claim, sent it to the agency, but the money never reached the creditors. In four months the debtor was declared a bankrupt. Held, that as the attorney was the agent of the agency and not of the creditor, his knowledge was not the knowledge of the creditor, and that the creditor was not liable to the assignee for the amount collected on the judgment, especially as it did not come to his hands. Hoover v. Wise, 1 Otto, 304. § 186. Mistake.- A mistake of law or error of judgment by counsel as to the admissibility or weight of evidence is not ground for a rehearing. Baker v. Whiting, 1 Story, 2-6.

§ 187. Liability for assisting slave.- The counsel of fugitive slaves may test the legality of their detention by any proceedings known to the law of the land, but is liable if he aids or assists in an escape in any way that the law does not sanction. Weimer v. Sloane, 6 McL., 272.

§ 188. Lobbying - Contingent fee.- Where the private rights of persons are to be affected by legislative action, counsel may be employed to act in behalf of the parties interested to present their claims to the committees or the members of the legislature, and so long as this is done fairly, openly and honestly there is nothing in such a course contrary to public policy or sound morality; and a contract for a contingent fee in such a case will be sustained. Child v. Trist,* 1 MacArth., 3.

§189. An agreement with an attorney to prosecute a claim before congress and its committees, and to prepare petitions and argue the claim, is perfectly legitimate; but a contract to procure a favorable action of congress by means of "lobbying" and by personal solicitation of members is against public policy and void; and where services of these two classes are so mixed up with reference to a single claim as to form a part of one transaction, there can be no recovery by the attorney for any services. What is bad of the contract destroys what is good, and both parts perish together. Trist v. Child., 21 Wall., 448.

§ 190. Negligence — General rule.- An attorney must possess ordinary legal knowledge and skill and be diligent and careful. He is civilly responsible for deficiency or failure in these respects. But loss or damage must be shown to justify a recovery from an attorney for negligence. Spangler v. Sellers, 5 Fed. R., 882.

§ 191. But attorneys at law in the exercise of their proper functions as such are not liable for their acts when performed in good faith, and for the honest purpose of protecting the interests of their clients. Campbell v. Brown, 2 Woods, 350.

$192. not ground to arrest judgment.- Mere negligence of an attorney, unaccompanied by fraudulent combination or connivance, has never been deemed a sufficient reason for equitable interposition to arrest a judgment at law. Wynn v. Wilson, Hemp., 699.

§ 193. Wrongful submission to arbitration.-It seems that if an attorney submits a matter to arbitration without authority, the remedy of the client is against the attorney personally. Greene v. Darling, 5 Mason, 205.

§ 194. Omission to enter appearance.- Where an attorney directs the clerk to enter his appearance in a replevin suit, and the clerk neglects it, and the cause is discontinued because of a want of appearance, it will be reinstated on these facts being shown. McCleod v. Gloyd, 2 Cr. C. C., 264.

§ 195. Omission to plead.- If a defendant instructs his attorney to plead the statute of limitations, and he does not do so till after rule day, the court will not order the plea

stricken out, if it appears that being new to practice the attorney omitted through ignorance to plead it at the proper time. Wetzell v. Bussard, 2 Cr. C. C., 253; Union Bank v. Eliason, 2 Cr. C. C., 630.

§ 196. Negligence in collecting note.- An attorney is not liable to his client for his acts in reference to the collection of a note, unless grossly negligent. Suydam v. Vance, 2 McL., 102. § 197. It seems that where a note is left with an attorney to sue, and he fails to sue the indorser, or sues him improperly, he will be liable to his client for damages, and the statute of limitations in such case will commence to run from the time when such suit should have been brought, or at the time of the mistake in the institution of the suit; and this though the actual damage in this case the expiration of the period of limitation-did not accrue till later. Wilcox v. Plummer, 4 Pet., 181.

§ 198. An attorney is not liable to the mere bailee or agent of the payee of a note for negligently failing to collect it or for wrongfully converting it to his own use. The action against the attorney must be brought in the name of the payee. Sevier v. Holliday,* Hemp., 160. $ 199. failure to attach or sue stockholders.— An attorney is not negligent in endeavoring to collect a claim, who does not attach property of an insolvent corporation which is more than covered by mortgages. Nor is he negligent in stopping proceedings to collect the debt of a corporation from its stockholders when the supreme court of the state in which such proceedings are pending decides that such stockholders are not liable, even though, six years later, the supreme court of the United States reversed such decision of the state supreme court. Marsh v. Whitmore,* 21 Wall., 178. $ 200. to pay over money. A solicitor, in a proceeding to sell the real estate of a de-cedent to pay debts, who attends to all the proceedings, procures his appointment as trustee, gives the proper bonds, makes all motions and procures all the orders in the proceedings, may, if he neglects to pay money which by orders of his own procuring he is required to pay, be sued without giving him previous notice. Brent v. Maryland, 18 Wall., 434.

$201. An attorney stands in the light of a trustee in respect to moneys collected by him for his client, and he cannot avail himself of the statute of limitations, which only begins to run from demand, directions to remit, or some equivalent act. Neither, it seems, is he liable to an action for such moneys, or for interest thereon, till after demand, or some equivalent act on the part of the client. Sneed v. Hanly, Hemp., 660.

§ 202. Acting for and against the same party.

It is not improper for a solicitor to appear for a company, to oppose the petition of a creditor who asks to have a receiver appointed, and afterwards for the trustee, against the company, to foreclose a mortgage; and such appearances have no effect to vitiate the decree. Shaw v. Bill, 5 Otto, 14.

§ 203. Miscellaneous.- A. deposited a sheriff's certificate of sale to him with his attorneys, B. & C., with directions not to deliver it to any one seeking to redeem save upon prepayment of the purchase money. C., not knowing of this arrangement, delivered an assignment of the certificate to D., taking from him some money and a note for the balance. All parties subsequently affirmed this arrangement. Held, that afterwards, when the land appreciated in value, and a profitable speculation seemed possible, it was not "professionally becoming" for B. to seek to defeat the assignment to D. by rescinding it and aiding in negotiating a sale to other parties, even though D. had failed to pay his note at maturity. Laflin v. Herrington,* 1 Black, 326.

§ 204. An attorney employed to examine an abstract and to draw a contract of sale found a defect in the title. Without disclosing it he procured a quitclaim deed of the land to be made to his brother. Held, that the attorney was guilty of a breach of professional faith amounting to a constructive fraud; that the deed to his brother should be considered as made to himself, and neither he nor his brother being in any sense bona fide purchasers, a reconveyance to the true owner was decreed. Baker v. Humphrey, 11 Otto, 499.

§ 205. A decree will not be set aside because of fraud practiced upon a party by her attorneys where it does not appear that it affected the result. Amory v. Amory, 6 Biss., 175.

§ 206. Attorney's purchase from client set aside.- An attorney who buys his client's property at a judicial sale will be considered as acting on behalf of his client and liable to him as a trustee, unless (the burden of proof being upon him) he can satisfactorily show that he purchased on his own behalf with his client's consent, and that the transaction was in every respect fair and without disadvantage to the client. Manning v. Hayden, 5 Saw., 380. § 207. It seems that all contracts between an attorney and his client, by which the former gains any advantage, are to be regarded strictly as security for what he may have advanced, or for what his services may be worth. Stanton v. Haskin,* 1 MacArth., 562.

§ 208. If a decree is void against an infant defendant for defects in the proceedings taken to obtain jurisdiction, the title of one of the plaintiff's attorneys who purchased at a sale under such decree is void, because he is chargeable with notice of the dcfect, and a conveyance by him of an undivided half to his law partner, after the reversal of the decree, is in

valid for the same reason. The protection which the law gives to purchasers at judicial sales is not extended in such cases to the attorney of the party, who is presumed to be cognizant of all the proceedings. Galpin v. Page, 18 Wall., 373.

§ 209. A defendant by his attorney successfully pleaded a discharge in bankruptcy to a claim. His attorney taxed the costs for the clerk, and wrote the execution therefor. He then furnished the sheriff with lists and descriptions of lands of the non-resident plaintiff to the amount of fourteen thousand acres, and of the value of about $50,000, and insisted on his levying on the whole. He wrote and furnished notices of the sale to the sheriff, and insisted on a sale in spite of the sheriff's remonstrances, bidding off the land for $9.13§, and taking a conveyance to himself. He was offered afterwards, for a release, more than the amount of the judgment and costs, but refused. In an action for that purpose the sale was set aside as being a fraud on the law and an extortion. Byers v. Surget, 19 How., 304; S. C., Hemp., 716.

§ 210. An attorney who purchases property held by his grantor under a decree pro confesso which might, within a specified time, be set aside, and who acted as the attorney of his grantor in obtaining the decree, is not a purchaser without notice. Gay v. Parpart, 16 Otto, 696.

§ 211. An attorney who purchased at a sheriff's sale the property of his client, without the knowledge or consent of the latter, is in equity the trustee of his client. Stockton v. Ford, 11 How., 246.

$ 212.

upheld. When the transaction between client and attorney is totally discon nected with the relation, and concerns objects and things not embraced in or affected by or dependent upon that relation, they stand upon the rights and duties common to all other persons, and may deal with each other. And where a party in embarrassed circumstances conveys to one who has frequently acted as his attorney, such conveyance will not be set aside unless it appears that the attorney was consulted in reference to the matter or that he was in a position to take an unfair advantage. Jenkins v. Einstein, 3 Biss., 128.

§ 213. Where the solicitor of a railroad company bids off the property in his own name, for the use and benefit of the bondholders and not as a matter of speculation on his part, but for the purpose of holding it till the real purchasers get in a condition to take the title, the sale will be upheld. There is in such conduct nothing inconsistent with the solicitor's duties. As a rule purchases by solicitors of the property in litigation will be closely scrutinized, but are not necessarily invalid, and will be sustained if no injustice is done to the parties represented. Pacific Railroad v. Ketchum, 11 Otto, 299.

§ 214. An attorney may, after judgment, purchase property which was the subject of litigation, although prohibited by statute from purchasing litigious rights. McMicken v. Perin, 18 How., 509.

SUMMARY

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IV. DISCHARGE, COMPENSATION AND LIEN.

Dismissal of attorney, § 215.-Lien for fees and disbursements, § 216.- Contingent fees, §§ 216-218.- Dismissal of suit by client, § 219.-Whether lien extends to other suits, §§ 220, 221.

§ 215. An attorney may be removed at the will of his client, although he was employed upon a contingent compensation, the amount of which, the litigation not being closed, cannot be determined. And the client will be liable in damages for the breach of his contract with the attorney. In re Paschal, §§ 222–225.

§ 216. Both attorneys and counselors have liens upon funds in their hands for their fees and disbursements, to satisfy which an attorney or counselor in good faith may, without risk of summary punishment, retain moneys collected by them. So also may they retain such moneys to satisfy a valid set-off existing in their favor. Ibid.

§ 217. A contract contingently to compensate an attorney for services in prosecuting a claim before United States treasury officials is not unlawful. If uncertain in amount, a reasonable sum may be fixed by the jury, who are to be guided by evidence of the usages of the profession in charging for such services. And such compensation may be recovered, after the death of the attorney, by his administrator. Stanton v. Embrey, §§ 226–231.

when

§ 218. A contract to pay an attorney for services in prosecuting a claim before an Indian commission "one-tenth of whatever the claimant realizes from such claim ever the money comes into his hands," is not unlawful. The attorney's demand to be paid for such services after the money is collected is not the assertion of a lien upon the fund. Wright v. Tebbitts, §§ 232, 233.

§ 219. A suit compromised and dismissed, while pending on writ of error, by a party without the consent of his attorney, will not be reinstated on motion of the attorney who desires thereby to secure a lien on the judgment for his costs. Platt v. Jerome, § 234.

$220. The petitioner, an attorney, recovered three judgments for his clients, who subsequently became bankrupts. The assignee selected other attorneys, to whom the petitioner transferred all papers in the cases in his charge. The assignee agreed that petitioner's lien for legal services should not be waived by the substitution and transfer, but that the "lien should be first paid and satisfied by the first moneys coming into the hands of said assignee out of said suits." One thousand nine hundred dollars were recovered on two of the judgments, out of which all of petitioner's claims were paid, save one of about $800, for services rendered in securing a third judgment, out of which nothing was ever collected. This sum petitioner claimed should also have been paid out of the $1,900. Held, that his lien was limited to the funds collected in the particular case in which the services were rendered. In re Wilson, §§ 235–241.

§ 221. An attorney has no general lien upon an uncollected judgment for services in other suits; but only a particular lien for his costs and compensation in the particular cause. (General and special liens of attorneys discussed, and the authorities cited and reviewed.) Ibid. [NOTES.-See §§ 242-305.]

IN RE PASCHAL.

(10 Wallace, 483-497. 1870.)

STATEMENT OF FACTS.- Paschal was employed by two successive governors of Texas to prosecute litigation for the state in reference to certain bonds. His compensation, unless fixed by the legislature of Texas, was agreed to be a percentage, to be retained out of any moneys he might recover. He was removed by a third succeeding governor of Texas before the litigation was closed. The state moved that he be compelled to pay into court for it the moneys he had collected and to discharge him as its attorney. He claimed a lien upon such moneys for his fees, and the right to remain in the litigation until it should be settled and the amount of his contingent fee determined.

$222. A court may summarily attach, fine and imprison or remove its attorneys or officers for dishonesty or misconduct.

Opinion by MR. JUSTICE BRADLEY.

The application made on the first of these cases (No. 4) for an order on the respondent to pay money into court is in the nature of a proceeding as for a contempt. The application is based upon the power which the court has over its own officers to prevent them from, or punish them for, committing acts of dishonesty or impropriety calculated to bring contempt upon the administration of justice. For such improper conduct the court may entertain summary proceedings by attachment against any of its officers, and may, in its discretion, punish them by fine or imprisonment, or discharge them from the functions of their offices, or require them to perform their professional or official duty under pain of discharge or imprisonment. The ground of the jurisdiction thus exercised is the alleged misconduct of the officer. If an attorney have collected money for his client, it is prima facie his duty, after deducting his own costs and disbursements, to pay it over to such client; and his refusal to do this, without some good excuse, is gross misconduct and dishonesty on his part, calculated to bring discredit on the court and on the administration of justice. It is this misconduct on which the court seizes as a ground of jurisdiction to compel him to pay the money, in conformity with his professional duty. The application against him in such cases is not equivalent to an action of debt or assumpsit, but is a quasi criminal proceeding, in which the question is not merely whether the attorney has received the money, but whether he has acted improperly and dishonestly in not paying it over. If no dishonesty appears the party