ployer has not that for which he bargains in the employment, viz. zeal and vigilance for his own exclusive advan→ tage.

This confidence is so highly regarded, that courts of equity have sometimes interfered to set aside improvident grants made in favor of *persons confi- [*11] dentially entrusted with the conduct and manage

ment of the property so bestowed. On occasion of setting aside a conveyance made under such circumstances, it was said by the Lord Chancellor, "that if the defendant permitted the plaintiff to suppose that he was to take the management of her affairs for her benefit, the known doctrine is, that the fruit of that relation, if it were not absolutely dissolved before the transaction in question took place, could not be permitted to exist."(1) If, therefore, a

ble only, where the adverse claim is under a derivative, and not under a paramount title. Pearson v. Cardon, 2 Russ. & M. 606; S. C.4 Sim. 218; Craw shay v. Thornton, 2 Myl. & Cr. 1, 23; S. C. 7 Sim. 391; Swart v. Welch, 4 Myl. & Cr. 319; Cooper v. De Tastet, Taml. 177; Nicholson v. Knowles, 5 Madd. Rep. 40; 2 Story's Eq. § 817. In Pearson v. Cardon, just cited, Lord Brougham says:-" That an agent should have the power of filing a bill of interpleader when the principal demands the re-delivery of goods bailed with him, appeared to me so monstrous a proposition, and to involve such frightful consequences in mercantile transactions, that I could not suppose it was meant to contend for any such doctrine. For in fact, it amounts to this, that an agent may at any moment treat his principal to a chancery suit; and I was therefore relieved to find that the plaintiff's counsel went entirely on the peculiarity of the case." A party by a recognition of the right of one of the claimants, or, (to use a phrase which, in some of the cases cited in this note, has been borrowed from the law of real estate,) who has attorned to one of the claimants, may preclude himself from filing a bill of interpleader. Crawshay v. Thornton, ubi supra; Atkinson v. Manks, 1 Cowen, 706.||

(1) Huguenin v. Baseley, 14 Ves. jun. 299, afterwards affirmed in the House of Lords. There are many cases of this kind arising out of transactions between attorneys and their clients. Newman v. Payne, 2 Ves. jun. 199; Wells v. Middleton, cited 9 Ves. jun. 294; Gibson v. Jeyes, 6 Ves. jun. 267; Walmesley v. Booth, 2 Atk. 25; Bridgman v. Green, 2 Ves. 627. And it is said, that, independent of all fraud, an attorney shall not take a gift from his client, though the transaction may not only be free from fraud, but the most moral in its nature. Per Lord Erskine, Wright v. Proud, 13

man do not choose to act upon the confidence appearing in the course of the transaction to be reposed in him, he

Ves. jun. 138. And Lord Eldon, speaking of this relation, says, it is impossible in the course of the connection of attorney and client, that a transaction shall stand, purporting to be a bounty for antecedent duty. Hatch v. Hatch, 9 Ves. jun. 296. See also Hall v. Hallett, 1 Cox, 135; Wood v. Downes, 18 Ves. 120; Ib. 127; 1 Ball & B. 107; Jones v. Tripp, 1 Jac. 322; Williams v. Pigott, 1 Jac. 598; Pitcher v. Rigby, 9 Price, 79; Falkner v. O'Brien, 2 Ball & B. 214; Rivett v. Harvey, 1 S. & S. 502; Cane v. Lord Allen, 2 Dow. 289; Kenney v. Brown, 3 Ridgway's P. C. 462, 504, 522; Jenkins v. Gould, 3 Russ. 385. The rules established by courts of equity upon this subject are clearly and succinctly summed up by Hoffman, Asst. V. Ch. in the following words:" From a minute examination of the leading authorities, I deduce these positions as the existing law of the Court (of Chancery.) That a voluntary gift made while the connection of attorney and client subsists is absolutely void, and the property transferred by it can only be held as security for those charges which the attor. ney can legally make. Next, that a transfer of property made upon an ostensible valuable consideration, such as a lease or sale, is presumptively void; the client has the advantage of driving the attorney to produce evidence to prove its fairness, and to show that the price or terms were as beneficial as could be procured from a stranger. And lastly, [which was the great point in issue,] that a transfer of part of the property actually in litigation, or a contract to transfer a part is doubly void; illegal, because of the doctrine of champerty, as well as because of the existing relation of the parties; that such a contract will not be enforced on the application of the attorney; and if the client applies, will be cancelled on equitable terms." Berrien v. M'Lane, 1 Hoff. Ch. Rep. 424. Mr. Justice Story, (1 Eq. Jurisp. § 310,) gives a conclusive reason for the rule. He says:-" By establishing the principle, that while the relation of client and attorney subsists in its full vigor, the latter shall derive no benefit to himself from the contracts, or bounty, or other negotiations of the former; it supersedes the necessity of any inquiry into the particular means, extent, and exertion of influence in a given case; a task often difficult, and ill supported by evidence which can be drawn from any satisfactory source." It is, notwithstanding, perfectly well settled, that an attorney or solicitor may buy of, or contract with, his client, and is not to be regarded merely as a trustee dealing with his cestui que trust; but then, he is subject to the onus of proving that he did not avail himself of his confidential relation to the injury of his client. See cases cited post, 35, n. (m.)

Although the controversy in the case of Hunter v. Atkyns, 3 Myl. & K. 113, did not arise between an attorney and client, yet as that relation is so frequently alluded to in the decision, and the principles laid down have such a direct bearing on the present subject, that one or two extracts from the

elaborate judgment of Lord Brougham in that case, may be properly introduced here. He says, (p. 135,) "I take the rule to be this; there are certain relations known to the law, as attorney, guardian, trustee; if a person, standing in these relations to client, ward, or cestui que trust, takes a gift or makes a bargain, the proof lies upon him, that he has dealt with the client, ward, &c., exactly as a stranger would have done, taking no advantage of his influence or knowledge, putting the other party on his guard, bringing every thing to his knowledge which he himself knew. In short, the rule rightly considered is, that a person standing in such relation, must, before he can take a gift, or even enter into a transaction, place himself exactly in the same position as a stranger would have been in, so that he may gain no advantage whatever from his relation to the other party, beyond what may be the natural and unavoidable consequence of kindness arising out of that relation. A client, for example, may naturally entertain a kindly feeling towards an attorney or solicitor by whose assistance he has long benefitted; and he may fairly and wisely desire to benefit him by a gift, or, without such an intention being the predominating motive, he may wish to give him the advantage of a sale or a lease. No law that is tolerable among civilized men, men who have the benefits of civility without the evils of excessive refinement and overdone subtlety, can ever forbid such a transaction, provided the client be of mature age and of sound mind, and there be nothing to show that deception was practised, or that the attorney or solicitor availed himself of his situation to withhold any knowledge, or to exercise any influence hurtful to others and advantageous to himself. In a word, standing in the relation in which he stands to the other party, the proof lies upon him, (whereas, in the case of a stranger, it would lie on those who opposed him,) to show that he has placed himself in the position of a stranger, that he has cut off, as it were, the connection which bound him to the party giving or contracting, and that nothing has happened, which might not have happened, had no such connection subsisted. The authorities mean nothing else than this, when they say, as in Gibson v. Jeyes, (6 Ves. 277,) that attorney and client, trustee and cestui que trust may deal, but that it must be at arms' length, the parties putting themselves in the situation of purchasers and vendors, and performing (as the court said, and, I take leave to observe, not very felicitously or even very correctly) all the duties of those characters. The authorities mean no more, taken fairly and candidly towards the court, when they say, as in Wright v. Proud, (13 Ves. 138,) that an attorney shall not take a gift from his client, while the relation subsists, though the transaction may not only be free from fraud, but the most moral in its nature; a dictum reduced in Hatch v. Hatch, (9 Ves. 296,) to this, that it is almost impossible for a gift from client to attorney to stand, because the difficulty is extreme of showing that every thing was voluntary and fair, and with full warning and perfect knowledge; for in Harris v. Tremanheere, (15 Ves. 40,) the court only held that in such a case a suspicion attaches on the transaction, and calls for minute examination." In a subsequent passage (p. 140) the Lord Chancellor says; "The rule, I think, cannot be laid down much more precisely than I have stated

it; that where the known and defined relation of attorney and client, guardian and ward, trustee and cestui que trust exists, the conduct of the party benefitted must be such as to sever the connection, and to place him in the same circumstances in which a mere stranger would have stood, giving him no advantage, save only whatever kindness or favor may have arisen out of the connection; and that where the only relation between the parties is that of friendly intercourse or habitual reliance on advice and assistance, accompanied with partial employment in doing some sort of business, care must be taken that no undue advantage shall be made of the influence thus acquired. The limits of natural and other unavoidable kindness with its effects, and of undue influence exercised or unfair advantage taken, cannot be more rigorously defined. Nor is it, perhaps, advisable that any strict rule should be laid down,-any precise line drawn. If it were stated that certain acts should be the only tests of undue influence, or that certain things should be required in order to rebut the presumption of it, such as the calling in a third person, how easy would it be for cunning men to avoid the one, or protect themselves by means of the other, and so place their misdeeds beyond the denunciations of the law, and secure the fruits of them out of its reach! If any one should say that a rule is thus recognized, which from its vagueness cannot be obeyed because it cannot well be discerned, the answer is at hand. All men have the interpreter of it within their own breasts; they know the extent of their influence, and are conscious whether or not they have taken advantage of it in a way which they would feel indignant that others similarly circumstanced should do with regard to themselves."

Securities given by a client to his attorney are cautiously watched by a court of equity. Lord Eldon held, that the court would not permit an attorney to take from his client a mortgage for costs to be incurred. Jones v. Tripp, Jac. 322. Plumer, M. R. in a later case conceived himself, though reluctantly, bound to adhere to that decision, but as the mortgage was given as well for antecedent costs, as prospective costs, it was allowed to stand for the former. Williams v. Piggott, id. 598. So, in Jenkins v. Gould, 3 Russ. 385, 393, the Lord Chancellor said; "Mr. Gould [the defendant] had stood in the confidential situation of solicitor, agent and receiver of Mr. Jenkins [the plaintiff who had filed a bill for a general account and to set aside a security executed by him to Gould ;] and while in that situation (no professional person being employed for Mr. Jenkins) he had obtained from him a mortgage of his estates as a security for the balance of his account. It is admitted that he had never delivered any bill of costs; that he had never rendered any account of his receipts and payments; that he had never prepared any such account; that he had applied to his own use, and without any statement of the amount, the produce of some of the bills drawn or accepted by Mr Jenkins. Could a settlement under such circumstances, (Mr. Jenkins being by means of the mortgage, and otherwise, so in the power of Mr. Gould,) be conclusive?" And see Philips v. Belden, 2 Edw. Ch. Rep. 15, 16.

Courts of law, so far as they possess, and can enforce jurisdiction, in re

should reject it as soon as proposed.(m)

And

*not merely agents who are retained for a stipulat- [*12] ed reward, but those who officiously or gratuitously undertake the management of another's property, (n) are affected by this principle. It seems, however, to have been considered in a recent instance, that a pure gift from an employer to an agent, upon clear evidence of its being the deliberate and well understood act of the donor, with full and accurate intelligence of the value and force of the donation, and under a sense of obligations received, may stand.(0) And the rule itself does not apply to agents who are merely employed as instruments in the performance of some appointed service, but is calculated for those who are relied upon for counsel and direction, and whose employment is rather a trust than a service. (A)

lation to matters of this description, will scrutinize securities given by clients to their attorneys. As, where a judgment was entered by an attorney, by confession, on a bond and warrant of attorney, against his client, and part of the sum for which the judgment was given included costs, the court directed the clerk to inquire into the consideration of the bond, and to require the attorney to adduce proof of the consideration, or answer to interrogatories on oath, and that the costs included in the bond be taxed. 66 The court, from general principles of policy and equity, will always look into the dealings between attorney and client, and guard the latter from any undue consequences resulting from a situation in which he may be supposed to stand unequal." Starr v. Vanderheyden, 9 Johns. Rep. 253.||

(m) Per Lord Eldon. Huguenin v. Baseley, 14 Ves. jun. 294. || See Lord Brougham's remarks on that case in Hunter v. Atkins, 3 Myl. & K. 139.1

(n) Proof v. Hines, Forrest. 111.

(0) Harris v. Tremenhere, 15 Ves. jun. 344; Montesquieu v. Sandys, 18 Ves. 302.4

(A) | "A confidential adviser, one who has been generally consulted in the management of the person's affairs, though he may also have been specially employed in his business, does not lie under the same suspicion with an attorney or steward, or any one who has a general management." Lord Brougham, Ch. Hunter y. Atkins, 3 Myl. & K. 139. The following case is an instance of the manner in which a court of equity takes hold of transactions between principal and agent, probes them, and relieves the former from the effect of undue influence from whatever cause it may arise. Prior, a merchant, who afterwards became bankrupt, having been for sever