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Exparte James (g), Bulkley v. Wilford (h), Evatt v. Price (ë). The principle is clearly recognised in Fox v. Mackreth (k), as explained by Lord Eldon in Coles v. Trecothick (I); and also in another class of cases which go to restrain an attorney from shaking off the confidential relation to his client, or acting for his opponent; as Cholmondeley v. Clinton (m), Beere v. Ward (n).
The Appellant was not merely counsel for the Respondent, but his general legal adviser and agent. His going to Ostend to arrange with the Respondent for the resettlement of his estates, shows that he acted in that general character: his sending his pupil, Mr. Abbott, at the Respondent's expense, to investigate the titles and the value of the property in Ireland, shows it. The Appellant therefore having been not only the confidential counsel of the Respondent, but particularly consulted by the Respondent in all his efforts to adjust, by compromise, the claims of the party under whom the Appellant derives title to the securities, and never having intimated any intent to intermeddle with such claims for his own benefit, he ought to be considered as having purchased them for the benefit of the Respondent, his client, and it was not competent to him to derive any benefit to himself from any dealing in respect of such claims, without full and explicit notice to the Respondent, which he never gave. Even if, as contended for the Appellant, the relationship of counsel and client had, in fact, ceased, yet on grounds of public policy the Appellant should not be per
(9) 8 Vesey, 337.
(1) 9 Veg. 247.
mitted to derive benefit from a dealing which would necessarily expose him to the imputation of making use of confidential communications to his own advantage and to the prejudice of the Respondent's interest, without the Respondent having any adequate means of detecting such breach of trust, if it in fact existed.
There is no ground for impeaching the decree on the question of interest. The bond and deed of covenant were executed abroad to secure English debts, to an English merchant, described as of Blackwell Hall, London, charging estates in England and Ireland with the payment of the principal with lawful interest. The Appellant, an English barrister, purchases these securities in London. If he filed his bill in England, of course he could not ask for more than lawful interest in England; but he sues in Ireland, and the Respondent having then offered to pay him back his 2,4001, with 6 per cent., and the Court having declared by its former decree that the Appellant ought to accept that offer, he now claims it as a right. But this House set aside that decree on the Appellant's former appeal, and he cannot now have any benefit from it; and as there is no rule of interest agreed on by the parties, and the securities mention lawful interest or interest only, the Appellant cannot, at any event, have more than 5 per cent., which is the Court rate of interest in Ireland; Leslie v. Leslie (0).
It has been also said that the decree did great injustice on the point of costs. The Appellant ought not in justice to have any costs of his suit from the time from which he was declared to be a trustee for the Respondent. An offer was made as soon as the
(0) Lloyd & G. 5. (Cas. temp. Sugd.)
bill was filed, if he would admit his character of trustee, to pay the money with interest, and all costs incurred up to that time. The suit afterwards proceeded in consequence of his unrighteous conduct, and in strictness no costs ought to have been given him. Trustees persisting in unnecessary litigation ought to pay the costs personally; Henley v. Phillips (P), Campbell v. Campbell (9); at all events an appeal does not lie for costs.
Mr. Pemberton, in reply :-We do not say that the Appellant would be justified in interfering against the interests of the Respondent, who had been his former client; but surely it is not to be held that because counsel once held a brief or otherwise acted for a party, he is for ever precluded from dealing in any way with that party's property. The principle of equity so often referred to did not affect the purchase of these securities, as the Appellant had ceased to be the Respondent's legal adviser, and did not use any knowledge he had acquired in professional confidence to the prejudice of the Respondent. It is now or must be admitted on all hands that the securities were unimpeachable, and that the debt was a bona fide debt. The letter put in evidence as written in 1821 by Mackmurdo (to whom addressed no one knows) speaks of some other bond; it is proved by O'Reilly and Carpenter that the bond in this cause was executed in 1816, and delivered by O'Reilly to Carpenter in 1817. The only objection to the Appellant's purchase now remaining, is that the Respondent was in treaty for a compromise, to which Mackmurdo, having doubts of being able to enforce the securities, was willing to listen. The best evidence .. (p) 2 Atk. 48. (9) 2 Myl. & C. 25.
on that point is the positive declaration of Mackmurdo that there was no negotiation then pending with the Respondent. There were two treaties for a compromise in 1827 and 1831, not from any doubt of the amount of the debt, but to get a better security by the Respondent's eldest son joining him ; and in the proposed deeds the debt is mentioned over and over again, and admitted by the debtor and his solicitors as justly due. If the purchase is to be set aside, Mackmurdo is the party entitled to the benefit, and not the Respondent, who is not called on to pay more than his just debt. Both these treaties must by the very terms of the proposed new securities have been completed, if at all, during the life of Mrs. Palmer, or within six months after her death; but the purchase of the old securities by the Appellant was not made until more than 14 months after her death, and during that period or the preceding 12 months there was no treaty or compromise pending between the Respondent and Mackmurdo; and long before her death the Appellant had been discharged by the Respondent from all confidential relation as his counsel.
1842: March 8.
Lord Cottenham :- When this case came before this House in 1837, no opinion was expressed as to the rights of the parties; but it appearing that the proceedings below had not been such as properly to raise the question, an order was made, which has had the effect of giving the parties an opportunity of doing so, and the case now comes before your Lordships on both suits; the Court of Chancery in Ireland having, upon the cross bill filed by the Respondent, decided in the same manner as it had before decided in the original cause; and the question now to be decided is upon the real merits of the case.
There is no question now as to the amount of what is due upon the securities purchased by the Appellant from Mackmurdo for 2,4001. The Master has reported that 7,712 l. was due for principal and interest up to the date of his report: the Respondent took exceptions to this report, which were overruled by the decree of the 15th February 1839, from which, upon that part of it, there has been no appeal. The Appellant claims the whole of what is so reported to be due upon the securities. The Respondent contends, as the decree has decided, that he is entitled only to be repaid the sum at which he purchased the securities; or in other words, that the Respondent is entitled to the benefit of the purchase.
The evidence proves, that for many years prior to August 1831, the Appellant, Mr. Carter, had been engaged in the management of the Respondent's affairs, as counsel only, as the Appellant contends; but the evidence proves that the employment was of a very different character. Mr. Lucas and Mr. Parkinson say that he was the managing counsel ; and that in 1824 he went to Ostend, where the Respondent then was, to make some arrangement as to his affairs; and that in 1828 a Mr. Abbott, a pupil of the Appellant, was sent to Ireland at the recommendation of the Appellant, to make inquiries respecting the Respondent's property; that he received his instructions from the Appellant, to enable him, as he informed Mr. Lucas, to judge and determine what arrangements could be made; and upon his return the result of his inquiries was communicated to the Appellant, who stated to the witness Lucas that the information obtained was very important for the purposes of the Respondent, but which he does not appear to have communicated even to the Respondent's solicitors. It