majority"> Cushing, J.

There is a series of chancery cases, several being cited in the argument, and others collected in Eden’a notes to Newman v. Payne, 4 Brown, Ch. C. 350, which clearly prove that, in England, courts of equity will relieve against a mortgage or bond given by a client to his attorney for unliquidated or future costs.

In the above case, such was the decision of the Lord Chan*125cellor (Loughborough). So also of the court of exchequer in Pitcher v. Rigby, 9 Price, 79. Lord Eldon assumes the same doctrine in Jones v. Tripp, Jacob, 322.

In commenting on these decisions, Sir Thomas Plumer, in Williams v. Piggott, Jacob, 598, evidently has doubts, especially because such security is not void by statute; but the question was eventually decided in that case by Lord Gifford, on the authority of Pitcher v. Rigby. It must therefore, we agree with the plaintiff’s counsel in thinking, be taken as the rule in England.

We do not know whether it would be so held here. The rights and duties of an attorney in England are very different from what they are in Massachusetts. There, attorneys constitute a distinct profession; here they do not. There, a deep and broad line is drawn between attorneys and counsel, and the ways in which each of the two distinct classes of professional persons shall obtain compensation for services; here there is none. In England, we apprehend, if a sum of money were placed in the hands of counsel, either as a retainer, or to cover fees for services not yet performed, but to be performed, it could not be made the subject of attachment, or of relief in a court of equity. So also here, we doubt whether this court has power to annul a security entered into, in good faith and for a reasonable sum, and on proper conditions, between an attorney and his client, to secure compensation for services not yet performed, but contracted to be performed.

We do not speak now of malpractice ; that presents different considerations. If a contract between client and attorney come within the provisions of the statute against the purchase of rights of action, or advances on the same; Rev. Sts. c. 89, § 5; or if the facts in a case show an unlawful consideration or undertaking, Wheeler v. Russell, 17 Mass. 258; or constitute a collusive or dishonest bargain, so as to be void at common law; Allen v. Hawks, 13 Pick. 83; or involve considerations in themselves immoral or dishonorable—such a case would have to be decided on its own merits. In such a case of manifest wrong, we should feel inclined to exert our power *126to its fullest extent for the vindication of the honor of the profession and the purity of legal administration.

But there is no authority for assuming that the payment of proper fees to counsel in advance, either in England or in Massachusetts, is unlawful; quite the contrary. And in tne present case, we are by no means prepared to adjudge that the sum of one hundred dollars more or less, which Tuttle placed in the hands of Mr. Goddard, and which Mr. Goddard swears he holds for services performed, or engaged to be performed, to the full value of that sum, is an amount so large, or that the facts on the face of them are so questionable, as to imply a secret trust on the part of Mr. Goddard for the benefit of Tuttle, as against his creditors. We should have to assume this, in order to come to the conclusion of charging him as trustee, against his own declarations on oath. He must therefore be discharged.

The grounds of our decision, however, are particular tu the facts in the case. If the answer of a supposed trustee should disclose the possession of a sum of money or other effects, held professedly only as security for services to be performed, whether professional services or services in any common industrial pursuit or labor, the sum being larger apparently than the proposed object warranted, or there being other circumstances of suspicion, we should be very likely to come to a conclusion the reverse of that reached on the present occasion.

Trustee discharged.

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