Washington sentinel. [volume] (Washington [D.C.]) 1853-1855, 1854-10-14

to be sued by the United States. II, therefore
DIR, GARDENERS agents or attorneys were cogn
zant of their clients fraud, they may unques-
tionaby be made liable for the amounts re
ceived by them respectively. The committee
have already stated their failure to find any
conclusive legal proof of such knowledge. But,
in the judgment of portion Of the committee,
the circumstances are of SO doubtful cbarac-
ter as to justify suit even upon this ground
The committee deem it proper 10 say, that
the liability Of the parties, even upon the sup
position of their innocence of any participation
in the frauds of their clients, is no. without
serious question on the part of some. 1t is
maintained by those who assume this ground
that these agents and attorneys, being inter
ested IN the claims from the first, by their agree
ment to receive as their fees certain per CEN
tum OF the amounts awarded, must be consid-
cred In the light of partners, prosecuting the
demand for the mutual benefit of themselves
and their clients. In this view of the case, al
though the parties may not have been to any
extent implicated in the actual fraud, they are
nevertheless subject to all its civil conseauen-
ces and responsibilities, so far as concerns the
liability to repay the amount Of money obtained
by means of fraud and perjury.
On the other hand, it is argued with much
force, that, inasmuch as by the terms of the
treaty of Guadalupe Hidalgo the awards Of the
commissioners were to be " final and conclu-
siye, those awards must be considered, so far
as the United States are concerned, as having
at least the force and validity Of judgment
rendered by tribunal of competent jurisdic-
ton. Such a Judgment may, indeed, be an
nulled for fraud But it is voidable only,
not absolutely void; and it would there
fore pass the title to property in the hands Of
an innocent purchaser for valuable consider
Reports p. 300.) This fund in the hands Of
stolen property, which could be traced to the
possession Of any holder and recovered by the
true owner. Waving the well established dis
tinction between property and money, the lat
ter not being susceptible of Identification and
recovery like the former, there still remains the
fact that an authoritative decision has trans
ferred the legal title to the claimant, and ena.
bled him to pass it to any other party who may
not be affected by the original fraud, and who
may have paid valuable consideration for it.
1t cannot be denied that the services of an
attorney, fairly and honestly rendered, consti-
tute valuable consideration, sufficient to sup.
port an action or to sustain the title to property
purchased; and the same consideration would
seem to be sufficient in law to Justify an attor-
ney in holding money, fairly paid over to him
by his client out of the proceeds Of a judg-
ment rendered by competent tribunal. 1t is
admitted on all hands that this position would
be correct if the services has been rendered
after the award. But it is argued that the case
i'll hand is different, for two reasons first, be.
cause the fees agreed to be paid were to be
part Of the amount recovered and, second, be-
cause the services were rendered prior to the
award and payment of the claim, and in pros
ecution of it..
As to the first Of these grounds it may be
said that it is quite common to determine the
compensation of an attorney or agent by fixing
a certain per centum upon the amount recover
ed or collected, thus making the value Of the
service depend upon the responsibility incurred
and the success achieved. 1t is rather mode,
of estimating the value Of the labor and dill
gence employed than transfer Of interest in
the subject matter of litigation. The fairness
and reasonableness Of such contracts have not
heretofore been questioned and by no sort of
reasoning can it be made to appear that the
attorney is partner in the prosecution of the
claim, and subject to the same liabilities as the
claimant himself. If this assumption were
correct, the attorney, having been party in
interest, prosecuting joint demand for him
self and his client, would be liable as partner
not only to pay the part received by himself
but also that received by any other party inter-
ested with him. This would make each Of the
attorneys in this case liable Tor the whole
amount Of the award, without regard to the ex.
act amount received by him.*
As to the second position-to wit, that the
services we're rendered prior to the award, and
in prosecution of this very claim, which turns
out to be fraudulent--it must be admitted that
If the money had not been actually paid over
in consideration of the services rendered, the
attorneys and agents could not have claimed
the payment even after the award. But it is
equally undeniable that the services of an at
torney who acts in good faith, ignorantly prose
cutting even a forged and fraudulent demand
of his client, constitute as fair and legal
ground for remuneration as though the service
had been rendered in any other case. When,
therefore, the money was legally awarded to
DR.. Gardiner, aud was paid over by him to his
attorneys, it was paid upon consideration as
good and valid as if it had been paid to any
other creditor, upon any other consideration
whatever. In the case OF the Bank OF the
United States rs the Bank Of Washington, 10th
| Peters's Reports p. 81 where money had been
| paid upon an erroneous judgment, which was
hibcI"diuS ISNciotuJ luouSH ~ ndu Deeu ols-
posed Of in payment of antecedent debts, and
partly in fees to Thomas Swan and Walter
Jones, it was decided that the only party liable
was the plaintiff in the original Judgment 1t
does not seem TO have entered the thoughts OF
any one TO claim the repayment Of the attor-
ney's fees, although their services were render
ed in procuring the judgment which was after.
wards annulled.
When a negotiable paper is transferred ont
Of the due course OF trade, it is subject to the
equities existing between the original parties ;
because the party taking paper under such cir
cumstances is bound TO inquire, and is pre-.
sumed to be on his guard. But even in this
| case, after payment of the note, though it may
have been thoroughly fraudulent, it would
hardly be contended that the makers equity
could be enforced against the innocent assignee,
who had fairly obtained his money.
1t does not, therefore, seem to be at all ma
terial that the services in this case were rem.
dered in the prosecution of this claim itself,
and before the award was actually made. The
work having been, by the supposition, fairly
and honestly done and the amount Of conpen