Wallis v. Loubat — 2 Denio 607

Majority

p. 607

Wallis, appellant, vs. Loubat, respondent.

Headnote

A solicitor or counsellor of the court of chancery is not permitted to contract with his client for a part of the subject matter of the litigation, as a compensation for his services.

Accordingly where a bill in chancery was filed for the specific performance of a contract to exchange real estate, and the rents of the defendant’s property of which the complainant claimed a conveyance were paid to a receiver in the progress of the suit, who after a decree dismissing the bill, paid the same to the solicitor for the defendant, who was also the defendant’s counsel, who claimed the same under an agreement with his client that he was to retain them for his services in the cause; on an application to compel him to pay them to the defendant, held that such agreement was void.

Attorneys and solicitors are public officers and are subject to the control of the courts in which they practice; and are bound when they undertake the prosecution or defence of suits to serve their clients for the fees allowed by law.

A counsellor may, however, stipulate with his client for a reasonable reward for his services, irrespective of the allowance in the fee bill, though he is solicitor or attorney in the same cause.

p. 608

On appeal from a decree of the court of chancery, affirming an order made by the vice chancellor of the first circuit. For the facts in the case and the opinion of the chancellor, see 10 Paige, 352. The case was submitted on written arguments: by

A. H. Wallis, for the appellant, and

M. R. Zabriskie, for the respondent.

delivered an opinion in favor of affirming the decree appealed from, on the ground that Anderson had no authority from Loubat to make such a bargain as that set up by the appellant. He however stated that he did not intend to intimate a doubt but that the chancellor was right in the view which he had taken of the case.

Barlow, Hand and Wright, Senators, delivered opinions in favor of affirming the decree, upon the grounds taken by the chancellor.

Upon the question being put, “ Shall this decree be feversed ?” all the members of the court present who had heard the argument, to wit: The President, the Chief Justice, Mr. Justice Jewett, and /$'enators Backus, Barlow, Beers, Bockee, Burnham, Chamberlain, Corning, Deyo, Hand, Johnson, Jones, Lott, Mitchell, Porter, Scovil,.Talcott, Varney and Wright (21) voted for affirming.

Decree affirmed.

p. 609

CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF NEW-YORK,