66 Mo. 51 | Mo. | 1877
— “ Champerty,” says Hawkins, “ is the unlawful maintenance of a suit in consideration of some bargain to have part of the thing in dispute, or some profit out of it.” Sir Edward Cokes’ definition is similar, and he says it was an offense at common law before any statutes were passed on the subject, and cites Bracton and Eleta to
The common law doctrine of champerty, as explained by Blackstone, became the law of the States of this Union which adopted the common law, except in a few of the States whose courts have held that the common law of champerty was not applicable to their circumstances. In Richardson v. Rowland, 40 Conn. 555, the learned judge who delivered the opinion of the court observes that, “ among the States which discard the rule are Vermont, Delaware, Tennessee and Iowa.” We may add to this list California and Texas. But even in Vermont, in Danforth v. Streeter,
In the States of Kentucky, Alabama, Illinois, Indiana, Wisconsin, Ohio, Michigan, Massachusetts and Ehode Island, the common law offense of champerty is recognized whether to the extent of being punishable as a crime or only as invalidating contracts, which at common law were champertous, it is unnecessary in this case to inquire. Judge Story, in his commentaries, says: “ It is deemed an offense against public justice and punishable accordingly both at the common law and by statute, as tending to keep alive strife and contention and to pervert the remedial process of the law into an engine of oppression.” Story’s Equity, § 1,048. In Martin v. Clarke et al., 8 R. I. 402, the court said: “Whether we look therefore at the ancient common law, to the English statutes upon the subject, or to' our own legislation, the conclusion must be the same, that champerty is an offense against the law. Being such it must avoid every contract.” In New York they have
We will not undertake to cite all the cases, but the weight of authority sustains the position that an act of the Legislature of a State, adopting the common law, with only the usual qualifications contained in such act, adopts the common law in regard to champerty. And generally the courts which have so determined have also declared that the law of champerty, as explained by Blackstone, and not as defined by Coke and the older authorities, is that which obtains. Blackstone, fourth book, 135; Lathrop v. Amherst Bank, 9 Met. 490 ; Allard v. Lamerande, 29 Wis. 502; Martin v. Clarke et al., 8 R. I. 397; Bayard v. McLane, 3 Harrington 212 ; Benedict v. Stuart, 23 Barb. 421: Ogden v. Des Arts, 4 Duer 283. In Bayard v. McLane, supra, the court said, “ this important ingredient of paying or contributing to the expenses of the suit, seems ever since to have been regarded as essential to constitute the offense of champerty, being introduced into all the elementary works of authority as a part of the definition.” Counsel for appellants misconceive the ease of Allard v. Lamerande, 29 Wis. 502. It was an action by plaintiff to recover from defen
In the case of Crow v. Harmon, 25 Mo. 471, the following was the agreement sued on : “I promise to pay G. W. Grow one hundred dollars if the M. T. Lewis county-road is not opened and kept open along the creek where it is now located, or if said Crow should make null the present proceedings of the court and commissioners, as already had and done by them. I also agree that if said road is opened and kept open that said Crow shall have all the damages that may ever be assessed me for the same.” Messrs. Eoster, Yories and Loan, for defendant, contended that the agreement was champertous and void. Messrs. Hall and Gardenhire insisted that it was not champertous because there was no stipulation that Crow was to “supply money to carry on any suit on condition of sharing in any land or other property gained by it.” The lawyers on both sides were of high standing at the bar, and seem to have assumed that the common law of champerty was the law in this State. Scott, J., delivered the opinion of the court and observed: “ As to the objection that the contract was champertous, it may be answered that there is nothing on
Section 1, page 886, 2d volume Wagner’s Statutes, is as follows : “ The common law of England and all statutes and acts of Parliament made prior to the fourth year of the reign of James I., and which are of a general nature, not local to that kingdom, which common law and statutes are not repugnant to or inconsistent with the constitution of the United States, the constitution of this State, or the statute laws in force for the time being, shall be the rule of action and decision in this State, any law, custom or usage to the contrary notwithstanding.” Although we adopted the common law without the qualification that it be applicable to our condition, the courts would be at liberty to declare that any portion of the common law inapplicable to our condition and circumstances, does not obtain here. Rut there is nothing in the law of champerty as expounded by Blackstone and Bouvier, and the American courts in the adjudicated cases which we have cited, that is not applicable to our condition. The race of intermeddlers and busy-bodies is not extinct. It was never confined
The contract under consideration, however, is not champertous, because while the attorneys agreed to receive as a compensation for their services, as such, a portion of the property in controversy, they did not bind themselves to pay any portion of the expenses of the litigation.
¥e do not agree with the court of appeals that “the whole doctrine of champerty and maintenance, is a relic of a state of things long since passed away,”, and we affirm its judgment, not because champertous contracts 'are not void in this State, but because the contract in question is not champertous.
Arrirmed.