De Rose v. Fay

3 Edw. Ch. 369 | New York Court of Chancery | 1839

The Vice-Chancellor :

All dealings between solicitor and client during the progress of business with which the solicitor is entrusted by his client are to be anxiously scrutinized in equity, in order to protect the client from his own acts done under the influence or ascendancy which the solicitor is supposed to acquire over him. The parties stand on unequal ground ; and generally principles of public policy require this care and vigilance on the part of the courts ; Starr v. Vanderheyden, 9 J. R. 263; Merrifield’s Law of Attorneys, 71 ; and authorities there cited.

The present case requires an examination into the consideration of the two judgments which Mr. Sears obtained by confession against his client Mrs. Fay pending the partition suit. The consideration and validity of the judgments are now, for the first time, questioned by the client; and, considering the relation that subsisted between the parties, it is incumbent on Mr. Sears to prove the considerations particularly. He must gbow affirmatively for what the judgments were given. The burden of proof is upon him.

There must be a reference to a master to take these proofs ; and the order for it will have to be similar in its terms to what was contained in the rule made by the supreme court in Starr v. Vanderheyden, supra. The particulars must be gone into and proved ; and the circumstances under which the indebtedness arose will have to be explained and be reported upon by the master, in order that the court may judge of the propriety of allowing Mr. Sears to retain the money he has received in payment of the judgments.