21 Or. 260 | Or. | 1891
The only question in this case, is whether the contract between plaintiff and Bigné is champertous and void. The solution of this question depends upon how far the ancient doctrine of champerty and maintenance is to be recognized in this state.
It is conceded at the outset that the contract in suit was honestly and fairly made, and that Brown acted in entire good faith in the matter. No advantage was sought or taken of Bigné; he was fully informed as to the extent, amount, and value of the property claimed by him, and it was at his earnest solicitation that Brown made the contract. When he was without means or credit to prosecute his claims, and sore pressed by the Manciét heirs, who sought to exclude him from his share in the estate, he applied for aid in the struggle to Brown, who thereupon in good faith entered into the contract and advanced the money to enable him to prosecute his claim, upon no other security for its repayment than the assignment of a one-half interest in the property in litigation. Under these circumstances, the defense of Bigné may be considered anything but meritorious.
The doctrine of champerty and maintenance, the gist of which is the same, differing only in the mode of compensation, arose from causes peculiar to the state of society in which it was established. The most potent reason for their suppression was an apprehension that justice itself would ■be endangered by these practices. The doctrine was established “to repress the practices of many who, when they thought they had title or right to any land, for the furtherance of their pretended right, conveyed their interest or some part thereof to great persons, and with their countenance did oppress the possessors. The power of- great men, to whom rights of action were transferred in order to obtain support and favor in suits brought to assert these rights, the confederacies which were thus formed, and the oppression which followed from the influence of great men, in such cases, are themes of complaint in the early books of the English law.” (Seywright v. Page, 1 Leon, 167.)
Blackstone speaks of these offenses as perverting the process of the law into an engine of oppression. (4 Blk. Com. 135.) So great was the evil of rich and powerful barons, buying up claims, and by means of their exalted and influential positions overawing the courts, and thus securing unjust and unmerited judgments and oppressing those against whom their anger was directed, that it became necessary in an early day in England to enact statutes to prevent such practices and to invoke in all its rigor the
Lord Coke says: “Nothing in action, entry or reentry can be granted over, for so under color thereof pretended titles might be granted to great men whereby right might be trodden down and the weak oppressed.” And Bullek, J., in Masters v. Miller, 4 Term R. 320, says“ It is laid down in our old books that for avoiding maintenance, a chose in action cannot be assigned.” But he adds: “The good sense of that rule seems to me very questionable, and in early as well as modern times it has been so explained away that it remains at most only an objection to the form of the action.” Under the circumstances above indicated, to allow rich and powerful persons to buy up claims, or to assist in the litigation with money to enable the plaintiff or defendant to prosecute or defend his cause of action or defense, was undoubtedly dangerous to the liberty of the subject, and sound public policy forbade it. With the advance of time came the change of circumstances, and in modern times, since England has enjoyed a pure and firm administration of justice, even in that country the rigor of the common law against champerty and maintenance has been very much softened; so that now not only the assignability of choses in action is generally recognized in that country, but it is said there is no rule of law which prohibits the purchase of the subject matter of a pending lawsuit although accompanied with an agreement to indemnify the vendor against costs and expenses. (Knight v. Bowyer, 2 DeGex. & J. 421.) Nor is a contract to support a pending litigation in consideration of having a stipulated part of the money or thing recovered per se void as against public policy. (Coondoo v. Mookerjee, L. R. 2 App. Cas. 186.)
In this country where no aristocracy or privileged class elevated above the mass of the people has ever existed, and
To meet the changed condition of society and administration of justice, the rule has been much modified, so that upon modern construction the doctrine of champerty and maintenance as regards a layman is confined to cases where a man for the purpose of stirring up strife and litigation encourages others, either to bring actions or to make defenses which they have no right to make or otherwise would not make; such interference is considered as having a tendency to pervert the course of justice. (Dorwin v. Smith, 35 Vt. 69; Findon v. Parker, 11 M. & W. 675; Stanley v. Jones, 7 Bing. 369.) The gist of the offense consists in the officious intermeddling in another suit, and contracts not within the mischief to be guarded against should not be held to come within the rule.
It may now be stated as a general rule that a man may sell the whole or part of a thing in action as well as the whole or part of a thing in possession. The right of disposition is involved in the very idea of property. With few exceptions, not material here, whatever a man may own he may sell; and whatever a man may lawfully sell, another
But agreements of the kind above suggested snould be carefully watched and closely scrutinized when called in question; and if found to have been made not with a bona fide object of assisting a claim believed to be just, but for the purpose of injuring and oppressing others by aiding in unrighteous suits, or for the purpose of gambling in litigation or to be so extortionate or unconscionable as to be inequitable against the party, effect ought not to be given to them. Courts administering justice according to the broad
Applying these principles to the case in hand, we find that the contract between plaintiff and defendant was entered into in entire good faith, and with no intention on the part of plaintiff of officiously intermeddling in the controversy between Bigné and the Manciét heirs, but only at Bigné’s earnest solicitation to enable him to obtain means to prosecute his claim. The contract was not unconscionable or unjust but fairly entered into. Bigné had no means except the property in litigation; and the taking by plaintiff of an assignment of a one-half interest therein as a consideration for the money advanced by him, violated no principle of law or public policy so far as we can see from this record.
What was said by Thayer, J., in relation to the doctrine of champerty in Dahms v. Sears, 13 Or. 47, is in regard to contracts between attorney and client, and has no application here. The relation of attorney and client did not exist between Brown and Bigné, and this opinion is confined to the case before us.
■The decree of the court below is therefore affirmed.