Vol. III.]

SANBORN v. KIMBALL.

[No. 1.

We also find the respondent guilty of dishonesty and bad faith toward his client, Thomas Frost. The evidence shows that Frost gave the respondent a retainer of $10 to defend him from an indictment for an assault with an intent to commit murder, and $20 more when the court was in session; that the respondent examined Frost's witnesses and told him to discharge them, and to "leave the case with him to fix up;" that "he had seen the parties and if Frost would let him have the money he would fix it up right away."

The respondent wanted $200 for that purpose which Frost let him have, and then went home. Upon being advised by his bondsman to return to court and look after his bond, Frost returned, found that nothing had been done, but was again assured by the respondent " that something would be done in a day or two." Nothing however was done, and Frost demanded the $200 of the respondent but recovered only $55, the balance being claimed by him for his services in the case.

The crime charged was one that the law does not allow to be compromised by the parties. The respondent was poor and Frost was in good credit. Neither the injured party nor the county attorney was introduced to show what efforts if any the respondent made to adjust the matter. Nor did the respondent offer his own testimony to remove the cloud that rests upon his professional conduct in this transaction. The evidence forces upon us the conviction that the respondent dealt falsely and dishonestly with his client, and in a manner utterly inconsistent with that "good moral character" which he should have possesed. The pretence that the respondent had a right to retain the money for his services is too transparent to mislead any discerning mind. The evidence shows that the money retained by him was not and could not have been obtained for that purpose, and that not a tithe of it was earned by him in the cause.

The specification of dishonest practices in obtaining money is established in several instances. The evidence shows that he went to Etna and obtained thirty dollars of Samuel R. Dennett, a farmer of that town whose acquaintance he had made the February previous while Dennett was attending court as a juror, upon the false statement that John C. Friend of Etna owed him sixty dollars. The respondent has never refunded the money though he promised to do so on the next day. He also obtained fifteen dollars of Seth Emery of Bangor, at an early hour in the morning, upon the representation that he had a check on which he expected to get the money and would pay the money as soon as the bank was opened. He never paid the money, and in the absence of any explanatory or exculpatory evidence to the contrary which it was in the power of the respondent to offer if any such existed, the inference is irresistible that he had no such check as he pretended to have. In another instance he obtained twelve dollars from a gentleman in Waterville upon representing that he had lost his pocket-book, was doing an extensive business in Philadelphia, and had no money to pay for his team and hotel bills, and upon his promise to remit the amount the next day from Bangor. As he neither sent the money nor would answer the gentleman's letters, the latter caused him to be arrested at the hotel in Waterville and thus collected his debt. His largest operation in the same direction that has been disclosed in

Vol. III.]

SANBORN V. KIMBALL.

[No. 1.

this proceeding is in the case of William P. Tenney, who let him have some fourteen hundred dollars at different times, solely upon his express representation that it was intended to be used, and his agreement that it should be used, to purchase soldiers' scrip or bounty, and that Tenney should have one half of the profits. After the earnest efforts of Tenney to obtain satisfaction, the result was his recovery of $400, the confession of Kimball that he had invested the balance in real estate in Sidney, and the tender of his worthless note for that amount. Other instances there are of successes and failures in obtaining money by means scarcely less disreputable though not so palpably dishonest.

As instances of unprofessional conduct and a disregard of the amenities of the profession may be mentioned his calling E. C. Brett, Esq., a member of the Penobscot bar and clerk of his court, a liar; in causing the name of Henry L. Mitchell, Esq., also a member of that bar, to be erased under an action without authority and in having his own name inserted instead ; and in putting his own name under an action defended by James W. Donigan, Esq., another member of said bar, without authority, and threatening "to flog him in the street if it was stricken off."

The specification of wittingly promoting and suing groundless suits is not sustained. In the one instance adduced the verdict of the jury was in favor of the respondent, then plaintiff, for nominal damages; and in the other the declaration seems to set forth good cause of action, whatever the proof may turn out to be, and as a jury may be called upon to try it, the court will not presume beforehand to pronounce it false and groundless. Our conclusion is that independently of the act of the respondent in offering the forged deposition and caption as evidence in court, the allegation in the motion that "the respondent does not possess a good moral character" is clearly established. With the evidence of that fact the case does not admit of a scintilla of doubt. The evidence discloses not merely a single instance of moral delinquency, disreputable practice, and professional misconduct, but a series of them, showing the respondent to be unfit and unsafe to be intrusted with the powers, duties, and responsibilities of the legal profession. No court would for a moment consider the claims of an applicant for admission to the bar who should be shown to possess such a moral character. If the violation of his oath of office, fraud upon the court, bad faith toward clients, dishonesty in his dealings as an individual, and disregard of the courtesies and proprieties due to the other members of the profession should operate a forfeiture of the office of an attorney, the respondent has no longer any claim or right to enjoy that office.

Unpleasant as is the duty, grave as is the responsibility devolved upon us, and serious as must be the consequences to the respondent, we cannot forbear to pronounce the extreme judgment of removal without failing to discharge the high trust which the law reposes in us, and which is indispensable to the maintenance of the dignity of the bench, the integrity of the bar, and the purity of the administration of justice. Indeed to refuse to do so in this case would be virtually to abdicate this trust and render the law creating it a nullity. The guaranty which the law in this behalf provides for the security of the public must be maintained inviolate.

We have carefully examined all the respondent's objections to the pro

Vol. III.]

SANFORD v. Huxford.

[No. 1.

ceedings before the court at nisi prius, including his motions to dismiss, strike out, and quash, and also to reject and amend the report of the commissioner, but we find nothing in them for which he has any legal ground of complaint. The objection that the commissioner to take the testimony was not sworn is not well taken. Assessors, auditors, and referees appointed by the court are not required to be sworn, nor is a commissioner to take evidence. So also was it competent for the judge to receive the complaint and grant the rule to show cause at chambers returnable to the court in session. As we have before seen, the same strictness, formality, and technicality are not required in this proceeding as are requisite in other cases.

The judgment must be, the respondent to be removed from his office as attorney at law in all the courts of this state.

SUPREME COURT OF MICHIGAN.

[OCTOBER, 1875.]

WITHDRAWAL OF OPPOSITION TO BANKRUPTCY PROCEEDINGS AS CONSIDERATION OF CONTRACT.

SANFORD, Executrix, v. HUXFORD.

The withdrawal of opposition to bankruptcy proceedings already begun, is a valid consideration for an agreement made by the petitioning creditors with the defendants in bankruptcy.

CAMPBELL, J., delivered the opinion of the court.

Suit was brought below on an agreement by defendants to furnish to Jessie Crowell the value of a certain house formerly owned by him, or means to buy it, and also money enough to support him. The alleged consideration was his withdrawal of opposition to certain bankruptcy proceedings pending against his firm, and consent to amendments and an adjudication against them. A separate count contained the averment of an additional agreement to procure the withdrawal of opposition by the other partners.

The facts averred are set forth substantially as follows: On the 3d day of February, 1871, Crowell owned the dwelling-house property in question, at Albion, which is valuable. On the 15th of October and until February 17, 1871, he was a member of a commercial firm at Albion, under the style of J. Crowell & Co., composed of himself, William V. Morrison, and Osmon Rice. The firm was indebted to various creditors, among whom were the defendants and the First National Bank of Marshall, and the National Exchange Bank of Albion, of which latter Irwin was president. On the 4th of November, 1870, these two banks (the latter by Irwin as its president) filed a petition in bankruptcy against the firm, with the necessary jurisdictional allegations, averring an act of

Vol. III.]

SANFORD v. HUXFORD.

[No. 1.

bankruptcy by the suspension of payment of their paper, and also setting up individual acts of bankruptcy against Rice. On the 23d of November the respondents in bankruptcy joined issue denying the acts of bankruptcy and demanding a trial by jury, which had not come to trial on the 14th of February, 1871, when Crowell withdrew and procured the others to withdraw opposition, and consented and procured their consent to the steps contemplated by the contract. On the 3d day of February, 1871, the contract is alleged to have been made as before mentioned. On the 9th of March, defendants proved their debts and became parties to the proceedings.

The defendants demurred to the special counts, the grounds of demurrer being, first, that the declaration sets out no consideration for the promises of the defendants; second, that the contract was void as against public policy; and third, that it was a fraud on the partners of Crowell. The demurrer was sustained, and error is brought on the rulings.

The objection for want of consideration rests on several distinct grounds, which were in substance that there was nothing showing a doubtful case, or a defence or belief in a defence in good faith, to the bankruptcy, and nothing to show that the proposed amendments were material, or that defendants could have been benefited or Crowell injured by his consent to the adjudication. It is insisted that all these, or enough of them to make out a consideration, should affirmatively appear.

If the arrangement was not illegal, it is not disputed that it may be upheld if any valid consideration appears. But it is claimed there is no presumption of that kind arising out of the facts set out.

The rule as to consideration for agreements to abstain from litigation, present or contemplated, does not seem to differ from that relating to any other contracts, although upon the facts, difficulties often arise. The rule seems to be well determined that there must be a benefit on one side or a detriment suffered or service done on the other. We find nothing to indicate that the benefit rendered need be to the party contracting, if it is to any one else at his procurement or request, any more than in other contracts. And in the present case, if the arrangement made was to the detriment of Crowell as for the advantage of the petitioning creditors, it is not important what share defendants may have had in the advantage. Pullen v. Stokes, 2 H. Bl. 312; Smith v. Algar, 1 B. & Ad. 603; Anonymous, Cowp. 129; Rood v. Jones, 1 Doug. 188.

It is admitted that if Crowell lost any advantage which he had a right to insist upon, or if the creditors obtained an advantage otherwise not obtainable, and which Crowell had a right to withhold, or if there was an honest doubt concerning their respective rights, there would be a sufficient consideration. But it is not admitted that the declaration shows this.

By withdrawing opposition to the bankruptcy proceedings, and consenting to amendments and to a decree, Crowell divests himself of the possessory control and of the legal ownership of his whole estate, and subjected it without further delay to the disposition of the bankrupt court, and to ratable distribution by an assignee among his creditors. He had a right to the control of it until otherwise ordered by the bankrupt court, and he could not lose title to it unless adjudged a bankrupt.

Vol. III.]

SANFORD v. Huxford.

[No. 1.

If not so declared he would have retained the dominion recognized by the common law and state statutes, and could apply it as he saw fit, so long as he committed no fraud. He thereby gave up a positive value in present enjoyment, and a contingent right of absolute control and dominion, in case he succeeded on the issue.

That these were valuable rights cannot be doubted. The courts regard involuntary bankruptcy as an injury to which a party should not be subjected except for his legal omissions or violations of duty. The supreme court of the United States has recognized this principle very plainly in refusing to raise presumptions of fraud to bring transactions within the statutes. See Mays v. Fritton, 20 Wall. 414, following Wilson v. City Bank, 17 Wall. 473, in which the subject is fully discussed. Mr. Justice Miller says, concerning involuntary bankruptcy (p. 482): "But when a person claims to take from another all control of his property, to arrest him in the exercise of his occupation, and to impair his standing as a business man, in short to place him in a position which may ruin him in the midst of a prosperous career, the precise circumstances or facts on which he is authorized to do this should not only be well defined in the law, but clearly established in the court." And Lord Kenyon in Kaye v. Bolton, 6 T. R. 134, sustaining an argument to withdraw bankruptcy proceedings, on the promise of a third person to pay creditors, as entirely reasonable, says: "It would be monstrous to say that the bankrupt's estate shall still be torn in pieces by the expenses of the commission." Common experience shows that an estate can seldom be applied in bankruptcy as prudently or economically as in private hands by debtors, and that often (as remarked by Miller, J., in 17 Wall. 486), " by forbearance of creditors, by meeting only such debts as are pressed, and even by the submission of some of their property to be seized on execution, they are finally able to pay all, and to save their commercial character and much of this property.

The law gave Crowell an absolute right to contest these proceedings before a jury, of which he could not be deprived except by consent. This right he surrendered by the agreement in question, if made as alleged.

On the other hand if we assume the allegations to be true, it appears, and must be taken as true, that the creditors of the firm thought it for their advantage to procure a decree in bankruptcy, and were willing to pay a large price for that privilege. They, and not Crowell, appear as the parties anxious for a withdrawal of the legal controversy to be submitted to the jury, and for a confession of judgment (or what is analogous to that), which would expedite their proceedings and prevent absolute delay and possible failure. It is plain that this was in fact, and was considered, an advantage. We have, then, a double consideration, whereby Crowell gave up important rights, and the creditors gained important advantages.

It is urged, however, that unless Crowell had a defence, or at least a case of doubt in his favor, there was no justice in defending, and therefore no consideration for abstaining, which the law can favor. And reference is made to compromises where no suit has been commenced, as standing on the same footing with cases in litigation. There are some cases which appear to confound the distinctions, and which may deserve