We have often held that we will not reverse a judgment upon the mere ground that in our opinion the preponderance of the evidence is against the *320verdict of the jury, where the evidence is conflicting, and the case is not so clear as to warrant the presumption of bias, partiality, or obvious mistake, or misapprehension on the part of the jury ; and such is the uniform course of decisions in this state.
But this doctrine does not apply where there is no evidence to sustain the verdict.
In this action the plaintiff showed, by evidence entirely unimpeached and uncontradicted, that he had rendered services as the attorney for the defendant in conducting the defence of a suit from its commencement to its close, and there was no evidence whatever that he had been paid any thing therefor. The only evidence on the part of the defendant consisted of the plaintiff’s admission that he had received, by agreement, ten dollars as “ counsel fee.”
This in no manner affected his claim for services as attorney in the cause.
It is not true, that any law of this state has abolished the distinction between the proper services of an attorney and those of a counsellor. The law requires that a candidate for the office shall be admitted to practice in both capacities at the same time. No one can now be admitted to practice as an attorney until he is qualified to practice as a counsellor— nor to practice as a counsellor until he is qualified to practice as an attorney. But the capacities are distinct, and the authority of each is distinct. The counsellor cannot, in virtue of his mere retainer as such, authenticate the process and proceedings in the cause. Nor, under a retainer as attorney merely, can a party insist upon his right to perform duties and claim compensation therefor as counsellor.
The admission, therefore, that the plaintiff was paid a “ counsel fee by agreement,” did not prove, nor, unaccompanied by any other evidence, did it in any just sense tend to prove, that the plaintiff had agreed to perform the duties of attorney without other compensation.
The code leaves the attorney and client and the counsellor and client to make their own agreement, and in the absence of *321proof of an express agreement, it leaves the agreement to he implied from the nature and value of the services rendered.
The proof of value in this case was clear and uncontradicted, and yet wholly disregarded by the jury.
The judgment must be reversed; and as the case appears to have been fully developed on the trial below, so that we can render such judgment as should have been rendered there, we ought, we think, to order judgment for the plaintiff, with costs.
Judgment reversed, and judgment ordered for the plaintiff.