Kennedy v Broun and Wife

JurisdictionEngland & Wales
Judgment Date16 January 1863
Date16 January 1863
CourtCourt of Common Pleas

English Reports Citation: 143 E.R. 268

IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER

Kennedy
and
Broun and Wife

S. C. 32 L. J. C. P. 137; 7 L. T. 626; 9 Jur. N. S. 119; 11 W. R. 284. Approved and followed, Mostyn v. Mostyn, 1870, L. R. 5 Ch. 459. Commented on, R. v. Doutre, 1884, 9 App. Cas. 745. Referred to, In re Le Bresseur and Oakley, [1896] 2 Ch. 496. For proceedings in Chancery see 33 Beav. 133; 4 De G. J. & S. 217.

[677] kennedy v. broun and wlfe. Jan, 16th, 1863. [S. C. 32 L. J. C. P. 137; 7 L. T. 626 ò 9 Jur. N. S. 119 ; 11 W. R. 284. Approved and followed,. Mostyn v. Mostyn, 1870, L. R. 5 Ch. 459. Commented on, B. v. Doutre, 1884, 9 App. Gas. 745. Referred to, In re Le Brasseur ami Oakley, [1896] 2 Ch. 496. For proceedings in Chancery see 33 Beav. 133 ; 4 De (1 J. & S. 217.] A promise made by a client to pay money to a counsel for his advocacy, whether made before or during or after the litigation, has no binding effect. - The relation of counsel and client renders the parties mutually incapable of making any contract of hiring and service concerning advocacy in litigation. - A claim which is absolutely void by reason of an illegality or immorality in the consideration, cannot be relied on in support of a count upon an account stated. This was an action for money alleged to be due from the defendants to the plaintiff upoiuaecounts stated with the female plaintiff before her marriage. The defendants pleaded, - first, never indebted, - secondly, payment before action, -thirdly, that the action was brought for the recovery of fees, charges, and disbursements for business done by the plaintiff as an attorney, &c., - fourthly, that the accounts were stated of ancl concerning moneys claimed by the plaintiff for and in "respefct of work, journeys, care, skill, and attendances done, bestowed, and applied, 13C.B.(N. S.)678. KENNEDY V. BROUN" 269 and moneys paid by the plaintiff for the defendant Patience Broun, formerly Swinfen, whijst she was unmarried, in pursuance of divers illegal agreements before then made between them, for the unlawful maintenance by the plaintiff of the said Patience Swinfen in and about the divers actions, suits, and proceedings at law and in equity touching and relating to certain lands, tenements, and other property claimed by her, and' which in do way belonged to the plaintiff, and wherein he the plaintiff had no right, estate, title, or interest, contrary to law, &c. The plaintiff replied that no agreement for unlawful maintenance was made as alleged, nor was any account stated as alleged in the fourth plea. Issue thereon. The cause was tried before Cockburn, C. J., at the iast Spring Assizes, 1862. The facto which appeared in evidence were in substance us follows:-In the year 1855, thg:female plaintiff, then Mrs. Swinfen, was in possession of an estate in the county of Stafford under the will of her late husband's father; and, proceedings having been instituted at the suit of the heir-[678]-at-law of the testator, who impeached the will, on the ground of undue influence and fraud, an issue was directed by the court of Chancery to try the validity of the devise. That issue came on for trial before Cress-well, J., at the Spring Assizes at Stafford, in 1856, when an arrangement was made by the respective counsel, the substance of which was that the estate should be given up .-to the heir-at-law, subject to an annuity of 10001. to Mrs. Swinfen for her life. This compromise was embodied in an order which was afterwards made a rule of court, and sought to be enforced by attachment, Mrs. Swinfen declining to accept the compromise, on the ground that it had been made without her consent and in defiance of her express directions to the contrary, and that, even if it were competent to counsel to compromise in an ordinary case, no such authority could exiat in the case of an issue directed for the purpose of informing the conscience of the court of Chancery. This court having refused to grant an attachment,-see Swinfen v. Swinfen, 18 C. B. 483, 1 C. B (N. S.) 364,-and proceedings in Chancery to compel Mrs. Swinfen to carry into effect the compromise having also failed, the issue went down a second time for trial at the Summer Assizes at Stafford in 1858, when Mrs. Swinfen obtained a verdict, which the court of Chancery refused to disturb, and consequently Mrs. Swinfen retained possession of the estate,-a result for which she was unquestionably indebted to the strenuous and able exertions of the present plaintiff. The plaintiffs claim under the account stated rested upon his own testimony, coupled with ò various letters addressed to him by the female defendant during the progress of the proceedings. The plaintiff, it appeared, was first introduced to Mrs. Swinfen in April, 1856, when, being dissatisfied with her then legal advisers, [679] she asked his advice concerning the compromise. At first he advised her to submit, but, upon further consideration, she at his suggestion determined to resist, and engaged hia services, with the result already mentioned. Urged by her, the plaintiff left Birmingham, where he had established himself in practice as a barrister, and took chambers in the Temple for the purpose of assuming the entire control over the proceedings as her counsel, he at this time receiving no fees, but trusting to repeated general promises on the part of Mrs. Swinfen to compensate him generously for all his exertions and sacrifices on her behalf,-telling him on one occasion, just before the second trial, that " she felt confident of winning, that she would make him a rich man, and that it would be worth 20,0001. to him ;" and again, when the verdict had been obtained, that, " he had won the 20,0001.," and promising to make a settlement on. him; and; after the refusal of the Master of the Kolls to grant a new trial, she agfiin said to:him "Your 20,0001. is safe now." In March, 1859, the plaintiff pressed Mrs. Swinfen to give him some security for the promised remuneration, reminding hep of the sacrifices te had made for her,-alluding to his having given up hia practice at; Birmingham. Towards the end of April in that year, in a conversation which' he had with Mits. Swinfen, the plaintiff said: " You know I have never asked you ifor any writing to confirm your promises; but I think it right, for the sake of my family. Let ua understand one another. What do you mean to give me ? You have several times mentioned 20,0001.; do you consider that you owe me that ?" To this Mrs. Swinfen replied: " Certainly. But you know you cannot have it at present." To which the plaintiff rejoined : " I am aware of that: but you ought to give me some security." After some further conversation, and taking time to consider, [680] Mrs. Swinfen agreed to grant the plaintiff the reversion of the estate charged with 20,0001.; and this arrangement was subsequently carried out by a deed of the 10th of May, 270 KENNEDY V. BROUN 13 C. B. (N. S.) 681. 1859 (a). The value of the estate was about 60,0001.; and the present estimated value of the deed, assuming it to he a valid security, was between 15,0001. and 10,0001. The plaintiff estimated the loss he had sustained by abandoning his practice at Birmingham at about 10,0001. The fees he had received as counsel in the course of the proceedings in the Swinfen case were about 7001. Tlje defendant, who was examined at great length, contradicted every statement made by the plaintiff' as to the promises of remuneration. It was objected on the part of the defendants that the evidence did not sustain the account stated, the language relied on by the plaintiff for that purpose being nothing more than expressions of grateful recognition by the defendant of services rendered, not amounting to or intended to constitute a contract; and, further, that there could be- no legal liability arising out of a contract void by reason of the law against champerty. The Lord Chief Justice declined to nonsuit the plaintiff, but reserved to the defendants leave to move; and, in summing up, he said : " You have been truly told by the defendants' counsel that you cannot take into consideration the services which have been rendered. The only claim of the plaintiff is upon an account stated, which can only be supported by an admission by the defendants of an existing debt. Whether, if you give your verdict for the plaintiff, it can he upheld, is a matter which it is not necessary to discuss [681] to-day. My opinion on the law is adverse to the plaintiff. Whatever he did aa attorney would fall to the ground. What he did was done aa counsel: and it has been laid down by the highest authority that a barrister can maintain no action for his fees : they are of an honorary character. It is impossible to doubt the propriety and expediency of this rule. The question which you have to decide is, not whether the contract on which the alleged account was stated was a legal contract, but whether the female defendant did in point of fact acknowledge the existence of this debt,-whether there was a contract for the services before they were performed, and subsequent acknowledgment of liability." His Lordship then proceeded to comment on the material parts of the evidence given by the plaintiff' and defendant respectively, and continued,-"The question which you are to consider is, which of the two speaks the truth. The plaintiff' swears that the female defendant promised him 20,0001., that she fixed that sum, and admitted that she owed the plaintiff that amount She, on the contrary, altogether repudiates her liability, and denies that she made any such acknowledgment or promise." And he concluded thus,-"As I have told you, the question is whether the female defendant made any express admission of an existing debt to the amount stated by the plaintiff". If you belief his statements, he will be entitled to your verdict. If, on the other hand, her evidence has satisfied you that his statements as...

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13 cases
  • Re Yap Peter
    • Singapore
    • High Court (Singapore)
    • 25 September 1990
    ...was a contract of honour. It was surprising that Gray had instituted legal proceedings to recover his fees: at [11].] Kennedy v Broun (1863) 13 CB NS 677; 143 ER 268 (folld) Le Brasseur and Oakley, In re [1896] 2 Ch 487 (folld) Morris v Hunt (1819) 1 Chit 544 (folld) Rondel v Worsley [1969]......
  • Broun v Kennedy
    • United Kingdom
    • High Court of Chancery
    • 29 January 1864
    ...her second husband, Charles Wilsone Broun, were Plaintiffs in the present suit, may be gathered from the òcase of Kennedy v. Broun, 13 C. B. N. S. 677. English Reports Citation: 55 E.R. 317 ROLLS COURT Broun and Kennedy S. C. 33 L. J. Ch. 71; 9 L. T. 302; 9 Jur. (N. S.) 1163; 12 W. R. 224;......
  • Saif Ali v Sydney Mitchell & Company
    • United Kingdom
    • House of Lords
    • 2 November 1978
    ...powerful authority to support the decision at which this House arrived: see for example Swinfen v. Lord Chelmsford [1860] 5 H & N 890; Kennedy v. Broun [1863] 13 C.B. (N.S.) 677. Each of their Lordships fully explained why public policy required the immunity which they proclaimed in respec......
  • Simon Matthew Gwinnutt (as the First Respondent's Trustee in Bankruptcy) v Nicholas Frank Raymond George
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 April 2019
    ...I have no doubt it would always have been regarded as a breach of professional etiquette for him to do so; but I regard it as settled by Kennedy v. Broun that in fact counsel is incapable of doing so…. To sum up the result of these two points, fees due to counsel create no debt: Wells v. We......
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