actions which were regarded as transitory in their character, to allege a fictitious place as the one where the cause of action accrued, and obliged the defendant to follow the place tnus assigned through all succeeding averments of a similar nature. In this way the courts obtained the power of considering transitory actions, even when their cause happened beyond the limits of the kingdom. But when the action was local in its nature it still remained necessary to aver all material facts as happening where they actually occurred, and hence no venire could be issued and no trial had when the venue thus laid was beyond the reach of the process of the court. In this manner jurisdiction was acquired over all transitory actions wherever the cause which gave them birth happened, while no cognizance could be taken of local actions save when a jury of the county could be summoned to try them. Id. 789, American note.

It becomes necessary, therefore, to a correct understanding of the modern law of venue, to ascertain what actions are local and what transitory. Where the subject or thing to be recovered is in its nature local the action is local. Of this class are all real actions actions of waste, when brought on the statute of Gloucester (6 Edw. 1), to recover, together with damages, the locus in quo, or place wasted- and actions of ejectment. All these are local because they are brought to recover the seizin or possession of lands which are local subjects. And various actions which do not seek the direct recovery of lands are also local by the common law, because they arise out of some local subject or the violation of some local right or interest. Within this class of cases are many actions in which only pecuniary damages are recoverable. Such are the common-law action of waste and trespass quare clausum fregit; as likewise trespass on the case for injuries affecting things real as for nuisances to houses or lands- disturbances of rights of way, or of common, obstruction or diversion of water-courses, etc.

No action will lie in one sovereign State for the recovery of lands or tenements lying in another; since a judgment in the action could by no possibility be enforced. Nor in general could any personal action be maintained in one sovereign State for a trespass, nuisance, or other injury to real property, lying in another, such actions being local (as already stated) because they arise out of local subjects. But it has been held that this last rule admits of an exception, where a local cause of action requiring a reparation in damages only arises in a foreign country in which there are no regular courts of judicature, and in which of course no legal remedy can be obtained. In such cases this exception has been allowed in some instances from necessity, to prevent a failure of justice. And as the judgment in this class of cases is for damages only, there is indeed no practical difficulty in enforcing it, as there would be if the action were brought for the recovery of a specific local subject situated in a foreign country. Thus where certain houses erected by the plaintiff on the coast of Nova Scotia had been illegally demolished by the defendant at a time when no regular administration of justice had been established in that province, and an action of trespass for that injury was brought in the English court of King's Bench, Lord Mansfield held the action to be maintainable upon this principle, namely, "that the reparation here was personal and for damages, and that otherwise there would be a failure of justice, for it was upon the coast of Nova Scotia, where there were no regular courts of judicature; but if there had been, Captain Gambier might never go there again, and therefore the reason of locality in such an action in England did not hold. I quoted a case of an injury of that sort in the East Indies, where even in a court of equity, Lord Hardwicke had directed satisfaction to be made in damages; that case before Lord Hardwicke was not much contested;

*

but this case before me was fully and seriously argued and 1,000l. damages given against Captain Gambier. I do not quote this for the authority of my opinion, because that opinion is very likely to be erroneous; but I quote it for this reason: 1,000l. damages and costs were a considerable sum. As the captain had acted by the orders of Admiral Boscawen, the representatives of the admiral defended the cause and paid the damages and costs recovered. The case was favorable, for what the admiral did was certainly well intended, and yet there was no motion for a new trial.” "There is a formal and substantial distinction as to the locality of trials. I state them in different things; the substantial distinction is where the proceeding is in rem, and where the effect of the judgment cannot be had if it is laid in a wrong place. That is the case of all ejectments where the possession is to be delivered. * * With regard to matters that arise out of the realm, there is a substantial distinction of locality too; for there are some cases that arise out of the realm which ought not to be tried anywhere but in the country where they arise. As if an action were brought relative to an estate in a foreign country where the question was a matter of title only and not of damages, there might be a solid distinction of locality. But there is likewise a formal distinction, which arises from the mode of trial, for trials in England being by jury, and the kingdom being divided into counties, and each county considered as a separate district or principality, it is absolutely necessary that there should be some county where the action is brought in particular, that there may be a process to the sheriff of the county to bring a jury from thence to try it. This matter of form goes to all cases that arise abroad; but the law makes a distinction between transitory actions and local actions. ** * So all actions of a transitory nature that arise abroad may be laid as happening in an English county," without taking notice of the foreign place. Mostyn v. Fabrigas, Cowp. 167, 180.

In a subsequent case it was held that trespass will not lie in England for entering a house in Canada. Doulson v. Matthews, 4 Durnf. & E. 503. Erskine argued that this was not an action to recover the land, but merely a personal action to recover a satisfaction in damages, which was transitory, and might be tried here. But Buller, J., said: "It is now too late for us to inquire whether it were wise or politic to make a distinction between transitory and local actions; it is sufficient for the courts that the law has settled the distinction, and that an action quare clausum fregit is local."

But personal actions, that is to say actions which seek nothing more than the recovery of money, or personal chattels of any kind, are in most cases transitory, whether they sound in tort or in contract, because actions of this class are in most instances founded on the violation of rights which in contemplation of law have no locality. And it will be found true, as a general position, that actions ex delicto, in which mere personalty is alone recoverable, are, by the common law, transitory, except when they are founded upon or arise out of some local subject.

As to actions founded upon leases, the common law established the following general distinction: If the action is founded on privity of contract between the parties, it is transitory, and may be laid in any county, even though the land or subject demised be situated in a foreign country. But if the action is founded on privity of estate it is local and must consequently be laid in the county in which the estate lies. For though money only is recoverable in either case, yet in the former the right of action arises exclusively out of the personal contract, which is in its nature transitory. Whereas in the latter the action is founded on the interest of the parties in the land or property demised,

which is a local subject, and for this reason the action is local.

The following actions, viz., lessor against assignee of lessee, assignee of lessee against lessor, assignee of lessee against assignee of lessor, and assignee of lessor against assignee of lessee, were local. But assumpsit for use and occupation, though substantially an action for rent, issuing out of a real subject, was transitory.

The English common law of venue has been generally adopted and applied by the courts of this country. Thus it has been held that covenant by or against an assignee of the term is local, and cannot be sustained unless the land is within the jurisdiction of the court in which the action is brought (6 Mass. 331; 21 Vt. 52; 3 Serg. & R. 500); even when both parties reside within the State where the suit is brought, while the land lies outside of it, so that a refusal to permit the plaintiff to sue there is virtually to deprive him of all remedy. 6 Gray, 122.

Trespass for injuries to the land is local and must be brought in the county where the land is situated. 2 Humphr (Tenn.) 424; 3 Harris (N. J.), 3; 6 Blackf. (Ind.) 559; 2 Greene (Iowa), 374. And if the land is situated in a foreign State the action cannot be maintained. Livingston v. Jefferson, 1 Marsh's Decis. 203; Watts v. Kinney, 23 Wend. 484; 6 Hill, 82; De Courcy v. Stewart, 20 Hun, 561; Eachus v. Illinois C. Co., 17 Ill. 534.

In Livingston v. Jefferson, Marshall, C. J., said: "It is admitted that on a contract respecting lands an action is sustainable wherever the defendant may be found. Yet in such a case every difficulty may occur that presents itself in an action of trespass. An investigation of title may become necessary, a question of boundary may arise, and a survey may be essential to the full merits of the cause. Yet these difficulties have not prevailed against the jurisdiction of the court. They are countervailed and more than countervailed by the opposing consideration, that if the action be disallowed the injured party may have a clear right without a remedy, in a case where a person who has done the wrong, and who ought to make the compensation, is within the power of the court. That this consideration should lose its influence where the action pursues a thing not in the reach of the court is of inevitable necessity; but for the loss of its influence where the remedy is against the person and is within the power of the court, I have not yet discerned a reason other than a technical one which can satisfy my judgment. If, however, this technical reason is firmly established, if all other judges respect it, I cannot venture to disregard it. The distinction taken is that actions are deemed transitory where the transactions on which they are founded might have taken place anywhere, but are local, where their cause is in its nature necessarily local. If this distinction is established; if judges have determined to carry their innovation on the old rule no further; if, under circumstances which have not changed, they have determined this to be the limit of their fiction for a long course of time, it would require a hardihood which, sitting in this place, I cannot venture on to pass this limit.

"One of the greatest judges who ever sat upon any bench and who has done more than any other to remove those technical impediments which grew out of a different state of society and too long continued to obstruct the course of substantial justice, was so struck with the weakness of the distinction between taking jurisdiction in cases of contracts respecting lands and of torts committed on the same lands that he attempted to abolish it. In the case of Mostyn v. Fabrigas, Lord Mansfield stated that the true distinction to be between proceedings which are in rem, in which the effect of the judgment cannot be had unless the thing lay within the reach of the court, and proceedings against the person, where damages only are

demanded." But in a subsequent case (Doulson v. Matthews) this distinction was repudiated and the old distinction was affirmed.

The Court of Appeals have recently decided that an action to recover damages for cutting down telegraph poles located in a public highway in the State of New Jersey cannot be maintained in the courts of this State. American Union Tel. Co. v. Middleton, 21 Alb. L. J. 295. The decision was placed upon the ground that the telegraph poles, being affixed to the soil, became part of the freehold (citing Electric Tel. Co. v. Salford, 11 Exch. 181), could not be cut down without an entry on the realty, and the only action which could properly be brought would be an action of trespass quare clausum fregit, which could not be maintained here. The case cited by the court does not hold that telegraph poles erected in a public highway become a part of the freehold and belong to the public, or that the company acquires such an interest or property in the soil of the highway that it may maintain an action of trespass quare clausum fregit, but it merely holds this: that a telegraph company is liable to be rated as an "occupier" of land in respect of its wires and posts placed along the line and on the land of a railway company. That the owner of property affixed to the soil of a public highway, under a license from the proper authorities, may maintain an action as for a trespass upon his realty, against a person injuring such property, is, indeed, a rather novel doctrine. As well might it be said that a person affixing a chattel to the land of another, with his permission, may maintain trespass quare clausum against a person injuring the same, while the owner of the land remains in possession. It is immaterial whether the telegraph company had an easement or a mere license, for in either case trespass quare clausum could not be maintained at common law. The court says that the poles could not be cut down without an entry on the plaintiff's realty. Perhaps it would be more correct to say that defendant could not enter upon plaintiff's "realty" until he cut down the poles and stood on the stumps. Perhaps defendant was the owner of the fee of the highway; if so, he had such a possession that he could maintain trespass against a person using the highway in front of his premises for an unlawful purpose. 11 Barb. 390. However, the defendant entered, not upon plaintiff's realty, but upon a public highway, and committed an injury (not to the highway) but to property lawfully placed there. An action on the case for injury to the easement (an incorporeal hereditament), or an action of trover, trespass to personal property, or replevin, would be the proper form of action, where forms of action existed, but trespass to realty would not, unless the plaintiff was the owner or in the actual possession of the land.

In Rogers v. Woodbury, 15 Pick. 156, it was held that redress will not be refused to the injured party, merely because he claims damages for the destruction of a building, unless it appears that he had or claimed such an interest in the soil on which it was erected as to render the building real instead of personal property. Plaintiff declared in trespass for taking and carrying away his "small fish house or camp," and for burning up and destroying his "wooden camp or small house," situated on an island in Maine, and it appeared in evidence that the house or camp was a one-story building without a cellar, used by plaintiff and his men to live in every spring while he carried on the salmon fishery; held, that there was no legal presumption arising from the declaration and evidence, that the property injured was real estate, and that if defendant would oust the court of its jurisdiction, on the ground that the cause of action was local, the burden was upon him to prove that the property was real estate. "If the owner of he land owned the building, it would be parcel of the realty. If he did not, and the owner of the building

bill was filed. They employed Humphrey to procure an abstract of title. In examining the title he found there was no deed from Chapman.

He thereupon sought out Chapman, and by repre

F. P. MURRAY.

ATTORNEY AND CLIENT-CONTRACT BY ATTORNEY IN FRAUD of CLIENT.

SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1879

BAKER, Appellant, v. HUMPHREY ET AL.

B., who had agreed to sell lands to which he claimed title, to H. & S. for $8,000, employed W., an attorney, who had long been employed by him to do legal business, to draw the contract of sale, which W. did, and witnessed its execution. H. and S. then employed W. to examine the title. In doing this W. found that the title was apparently in C., though C. had never asserted it. W., for a consideration of $25, representing that he wished it to protect the title of clients, procured a conveyance of the lands to his brother from C. The brother was not cognizant of this transaction. Thereafter W. instituted an action of ejectment in his brother's name to recover the lands. In ar action by B. to have the deed to the brother of W. declared fraudulent, etc., held, that the relation of client and counsel subsisted between B. and W., and the conveyance from C. to the brother inured to the benefit of B.

AP

PPEAL from the Circuit Court of the United States for the Eastern District of Michigan. Action in equity by Sanford Baker against George P. Humphrey, Hiram D. Hurd, Charles A. Hurd and David Smith. The opinion states the case.

SWAYNE, J. This is an appeal in equity. A brief statement of the case, as made by the bill, will be sufficient for the purposes of this opinion.

On the 27th of February, 1851, one William Scott conveyed the premises in controversy to Bela Chapman, taking from him a mortgage for the amount of the purchase-money, which was $3,500.

Both the deed and mortgage were properly recorded. Chapman did not take possession of the premises. On the 29th of November, 1851, Scott assigned the mortgage to Jacob Sammons.

The assignment was duly recorded on the 19th of March, 1852. Sammons conveyed the premises with warranty to Wm. M. Belote. From him there is a regular sequence of conveyances down to the complainant, Baker. Chapman lived near the property for years and knew that Sammons and others were in adverse possession and claimed title, but never claimed or intimated that he had any title himself. He drew deeds of warranty and quit-claim of the premises from others claiming under Scott, and as a justice of the peace or notary public, took the acknowledgment of such deeds. Upon those occasions also he was silent as to any defect in the title.

The complainant entered into a contract with the defendants Hurd & Smith to sell and convey the premises to them for the sum of $8,000.

He employed Wells S. Humphrey, a reputable attorney, who, for a long time, had been employed by the complainant when he had any legal business to do, to draw the contract. Humphrey accordingly drew the agreement and witnessed its execution. Hurd & Smith thereupon took possession and held it when the

of clients, procured Chapman to execute a quit-claim deed of the premises to George P. Humphrey, the brother of the attorney, for the sum of $25. The deed bears date on the 10th of June, 1872. George knew nothing of the transaction until some time afterward. An action of ejectment was instituted in his name to recover the property. Baker tendered to him $25, the amount he had paid for tho deed; offered to pay any expenses incurred in his procuring it, and demanded a release. He declined to accept or convey.

The prayer of the bill is that the deed to George P. Humphrey be decreed to be fraudulent, and to stand for the benefit of the complainant; that the grantee be directed to convey to Baker, upon such terms as may be deemed equitable, and for general relief.

Such is the complainant's case, according to the averments of the bill.

The testimony leaves no room for doubt as to the material facts of the case.

The direction for drawing the contract between Hurds & Smith and Baker was given to the attorney by Robling, the agent of Baker. Baker resided in Canada. Hurds & Smith directed the attorney to procure the abstract of title. With this Baker and Robling had nothing to do. The attorney disclosed the state of the title to Hurds & Smith, but carefully concealed it from Robling. Hurds & Smith being assured by the attorney that whatever they might pay Baker could be recovered back if his title failed, executed the contract with Baker, and declined to buy the Chapman title, but gave the attorney their permission to buy it for himself. There is evidence in the record tending strongly to show that there was a secret agreement between them and the attorney, that if the Chapman title were sustained they should have the property for $5,000, which was $3,000 less than they had agreed to pay Baker. This would effect to them a saving of $3,000 in the cost. They refused to file this bill, and declined to have any thing to do with the litigation. It thus appears that, though unwilling to join in the battle, they wero willing to share in the spoils with the adversary if the victory should be on that side.

There is in the record a bill for professional services rendered by the attorney against Baker. It contains a charge of $2 for drawing the contract with Hurds & Smith. The aggregate amount of the bill is $43. The first item is dated July 5, 1871, and the last July 12, 1872. The latter is the charge for drawing the contract. There is also a like bill against Baker and Smith of $45, and one against Baker and Mears of $6. These accounts throw light on the relation of client and counsel as it subsisted between the attorney and Baker.

With respect to Chapman we shall let the record speak for itself. Vincent testifies: "I asked him, how is it, Chapman? I thought you owned that property" (referring to the premises in controversy). He said, "no; I never paid any thing on it." He said, "Sammons has a right to rent. It is his property.' * * * "I asked him how he came with the deed from Scott, and he said, 'it was only to shield Sammons; that afterward Michael Dansmon paid the debt and the property went back to Sammons." "When I met Bela Chapman, and he asked for Sammons and wife, he said he had drawn a deed from Sammons and wife to Belote for the premises and wanted them to sign it."

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*

Francis Sammons, a son of Sammons, the grantor to Belote, says: "A part of a house situated on that lot three was leased by my father to Bela Chapman in 1851, for the purpose of storing goods, and afterward lived in

it a while. I collected the rent. I think he occupied it with his goods and family about three months. He never occupied or had possession of the premises at any other time, to my knowledge. He came from Mackinac when he put the goods in that house. He remained here four or five years after he came from Mackinac. Ho lived in Mackinac until his death. He came over to Cheboygan several times after he went to reside at Mackinac. Sometimes he would stay a week or two, visiting. At the time he lived here he was a notary public, justice of the peace and postmaster. I know he was in the habit of drawing deeds and mortgages for any one that called on him. I don't think there was any one else here during the years 1852 and 1853 who drew deeds and mortgages but Bela Chapman in this village. My father sold the premises to William S. M. Belote. My father was in possession of the premises from 1846 until he sold to Belote."

Medard Metivier says: "I hold the office of county clerk and register of deeds for Cheboygan county; have held these offices since 1872." * * * "I am in my sixtieth year. I came to live in this village in 1851. Lived here ever since, except about six years when I lived in Mackinac and Chicago during the war. I know Jacob Sammons and Bela Chapman; they are both dead. I remember being at the house of Jacob Sammons when a deed was executed by Sammons and wife to Belote. I witnessed the deed. That deed was witnessed by and acknowledged before Bela Chapman, as notary public. I think there was another deed executed by Sammons and wife to Belote, which I witnessed when Bela Chapman was present. I remember the circumstances distinctly of one deed being executed, witnessed by myself and Chapman, from the fact that the room was very dark owing to Mrs. Sammons having very sore eyes, and we had to raise the curtain for more light. There was not any other full grown person there, unless Mr. Belote was there, about which I cannot state positively, than Mr. and Mrs. Sammons, Mr. Chapman and myself. A part of the deed which I witnessed was in print. It was an oldfashioned form of printed deed. Mr. Chapman brought the form from Mackinac or somewhere. He only had them here. I know the premises described in the bill in this cause, and Chapman was never in possession of them to my knowledge. I know Mr. Chapman's handwriting very well, and I remember particularly that the deeds witnessed by myself and Mr. Chapman and acknowledged before him were in his (Chapman's) | handwriting, and that he drew both of them. I know one of the deeds then executed by Sammons and wife to Belote conveyed the premises in question and other property; cannot tell all of the other property.”

These witnesses are unimpeached and are to be presumed unimpeachable. Their testimony is conclusive as to Chapman's relation to the property. If there could be any doubt on the point, it is removed by the fact that for $25 he conveyed property about to be sold and which was sold by Baker to responsible parties for $8,000. This fact alone is decisive as to the character of the transaction with respect to both parties. No honest mind can contemplate for a moment the conduct of the attorney without the strongest sense of disapprobation.

Chapman conveyed by a deed of quit-claim to the attorney's brother. The attorney procured the deed to be so made. It was the same thing in the view of the law as if it had been made to the attorney himself. Neither of them was in any sense a bona fine purchaser. No one taking a quit-claim deed can stand in that relation. May v. Le Claire, 11 Wall. 217.

There are other obvious considerations which point to the same conclusion as a matter of fact. It is unnecessary to specify them, and we prefer not to do so.

The admissions of Chapman, while he held the legal title being contrary to his interest, are competent evi

dence against him and those claiming under him. He said the object of the conveyance to him was to protect the property against a creditor of Sammons. If such were the fact the deed was declared void by the statute of Michigan against fraudulent conveyances (2 Comp. Laws of Mich. 146); and it was made so by the common law. The aid of the statute was not necessary to this result. Clemments v. Moore, 6 Wall. 312. Nothing, therefore, passed by the deed to Chapman's grantee.

Chapman's connection with the deed from Sammons to Belote would bar him, if living, from setting up any claim at law or in equity to the premises. The facts make a complete case of estoppel in pais. This subject was fully examined in Dickerson v. Colgrove, not yet reported. We need not go over the same ground again. See, also, Cincinnati v. White's Lessee, 6 Pet. 431; Doe, d. Morris and others, 3 East, 15; and Brown v. Wheeler, 17 Conn. 353.

If Chapman had nothing to convey, his grantee could take nothing by the deed.

The latter is in exactly the situation the former would occupy if he were living and were a party to this litigation. The estoppel was conclusive in favor of Belote and those claiming under him, and this complainant has a right to insist upon it.

But there is another and a higher ground upon which our judgment may be rested.

The relation of client and counsel subsisted between the attorney and Baker. The employment to draw the contract with Hurds & Smith was not a solitary instance of professional service which the latter was called upon to render to the former. The bills of the attorney found in the record show the duration of the connection and the extent and variety of the items charged and paid for. They indicate a continuous understanding and consequent employment. Undoubtedly either party had the right to terminate the connection at any time; and if it were done, the other would have had no right to complain. But until this occurred the confidence manifested by the client gave him the right to expect a corresponding return of zeal, diligence, and good faith on the part of the attorney.

The employment to draw the contract was sufficient alone to put the parties in this relation to each other. Galbraith v. Elder, 8 Watts, 94; Smith v. Brotherline, 62 Penn. St. 469. But whether the relation subsisted previously or was created only for tho purpose of the particular transaction in question, it carried with it the same consequences. Williamson v. Moriarty, 19 Weekly Rep. (Ir. L. and Eq.) 818.

It is the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive. Hoopes v. Barnett, 26 Miss. 428; Jett v. Hempstead, 25 Ark. 462; Fox v. Cooper, 2 Q. B. 937.

In Taylor v. Blacklow, 3 Bing. N. C. 235, an attorney employed to raise money on a mortgage learned the existence of certain defects in his client's title and disclosed them to another person. As a consequence his client was subjected to litigation and otherwise injured. It was held that an action would lie against the attorney and that the client was entitled to recover.

In Com. Dig., tit. "Action on the case for deceit, A. 5," it is said that such an action lies "if a man, being intrusted in his profession, deceive him who intrusted him, or if a man retained of counsel became afterward of counsel with the other party in the same cause, or discover evidence or secrets of the cause. So if an attorney act deceptive to the prejudice of his client, as if by collusion with the demandant he make default in a real action whereby the land is lost."

It has been held that if counsel be retained to defend a particular title to real estate he can never thereafter, unless his client consent, buy the opposing title with