Duke v. Harper
66 Mo. 51
Mo.
1877
Check Treatment
Henry) J.

— “ 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 *56support his position. Blackstone defines champerty to be “ a bargain with the plaintiff or defendant campum partiré, to divide the land or other matter sued for between them} if they prevail at law; whereupon the champerter is to carry on the party’s suit at his own expense.” Bouvier’s definition of the offense is the same as Blackstone’s. Cooley’s Blackstone, fourth book, 435; Bouvier’s Dictionary, volume 1, 219. In a note to Cooley’s Blackstone, Judge Cooley observes that “ the tendency of late has been to confine these offenses (maintenance and champerty) within bounds somewhat narrower than those indicated by the older authorities,” page 135. In Lathrop v. Amherst Bank, 9 Met. 490, the court said : “ No doubt is entertained that the earlier doctrine as to maintenance has been very essentially modified.” At the date of the American revolution the English common law was in this country learned from Blackstone. He was the standard authority, and in his commentaries, more than in the works of any other English author, did the lawyers of that generation study the English common law, and even now in the United States it is a text book in all the law schools, and no effort to supplant it has ever been successful. Kent’s commentaries, notwithstanding the high estimate placed upon the work by the profession, is not regarded as a substitute for Blackstone, and an American lawyer who has not studied Blackstone’s commentaries would be an exception among the ’ thousands which the profession numbers.

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, *5728 Vt. 490; Eedfield, J., delivering the opinion of the court, said: “ There are probably other things coming more nearly to the idea of the common law definition of maintenance or champerty, such as carrying on suits for a share of the avails and thereby increasing litigation, and some others perhaps which the law will still regard as ehampertous and not countenance. But the present case does not seem to us of that character.” Again he said: “ The offense certainly does not exist in form in this State unless the common law offense has been adopted as pail of the law of this State, which I am reluctant to believe was the purpose of the Legislature unless with some qualifications.” Unless the meaning of this language of the court be that the common law offense of champerty has not been adopted as apart of the criminal code of Vermont and is not punishable as a crime there, but that a contract is nevertheless void, which, by the common law is champertous, the above extracts are irreconcilable. We hold, however, that case to be an authority in support of the views we entertain of the ease we are considering.

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 *58champerty statutes which the courts of that State have evidently construed as covering the whole ground and repealing the common law. In Thompson v. Reynolds, recently decided by the Supreme Court of Illinois, hut not yet reported, the following language was held by the court, Walker, C. J., delivering the opinion, a manuscript copy of which is before me: “ It thus appears that champerty was an offense at the common law, and our General Assembly having adopted the common law of England as the rule of decision, so far as applicable to our condition, until modified or repealed, this must be regarded in this State as affecting all such contracts, and as being opposed to sound public policy.” The agreement sought to be enforced there, was one by which it was stipulated that plaintiff should receive for his services a portion of what should be received in. the suit, and hear the expense of its prosecution. It was held void, as a champertous contract.

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*59dant a tract of land. Plaintiff had judgment and defendant appealed. He claimed “ that a champertous agreement between plaintiff and plaintiff's attorney relating to the compensation of the latter was proved on the trial, and that the court erred in denying the motion of the defendant to dismiss the action because of such agreement.” The court held that the law against champerty obtained in that State. Lyon, J., said: “ In all the agreements which have been held by this court to be champertous, there were express covenants or stipulations that the champerters should pay the expenses of the litigation.” Again: “ Upon the whole we see no good reason founded on principles, either of justice, public policy, or professional propriety, for holding that the agreement between the plaintiff and his attorney is champertous, although upon the authorities it would be otherwise had the attorney agreed to pay the expense of the litigation.”

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 *60the face of it showing that it is obnoxious to such an imputation, nor was there any evidence in support of it.” This was all that was said in the opinion on that subject. We think the clear inference from the language of the court is that it regarded the common law of champerty as in force in this State. That case is also an authority for the position that to render a contract champertous, the party stipulating for a portion of what may be recovered as a compensation for his services must likewise agree to bear all or a portion of the expense of the litigatioh. The contract was clearly champertous according to the older English authors, for it was stipulated that, if the road was established, Crow was to have all the damages that might be assessed to Harmon on account of the condemnation of his land for that purpose. This is the only case we have been able to find in the Missouri Reports, and we are satisfied that it is the only one that has ever been before this court, until now, involving this question.

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 *61to Great Britain, and the little band of refugees who landed from the Mayflower on the coast of New England were not entirely free from the vice of intermeddling in the concerns of other people. It is ■ as prevalent a vice in the United States as it ever was in England, and we do not see but that a law restraining intermeddlers from stirring up strife and litigation betwixt their neighbors is wholesome and necessary, even in Missouri.. A man having a doubtful claim to property in the possession of another, who would hesitate to incur the expense of testing its validity, will readily agree that one who will bear the burden of the contest, and take part of the .recovery for his pay, may institute the suit in his name. Such contracts are champertous and should be so held' on principle everywhere.

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.

All concur.

Arrirmed.