17 Ala. 206 | Ala. | 1850
This record presents two questions,— L Whether the exemplifications of the record of the suits in Crawford county, in the State of Arkansas, were properly authenticated, so as to be admissible in evidence. 2, Whether the contract declared on as shown by the bill of exceptions was void for champerty.
1. Upon the first, we can have no doubt. The act of Con-, gress, which prescribes the mode in which public acts, 'records and judicial proceedings in each State shall be authenticated, so as to take effect in every other State, requires the attestation of the clerk of the court in which the proceedings are of record, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief-justice or presiding magistrate,
2. There can be no question but that these two agreements, the note and the receipt, executed at the same time, in respect ■of the same subject-matter, and between the same parties, must be considered as forming but one contract, and should be eon-strued as though they were embodied in one instrument. — Sewall v. Henry, 9 Ala. Rep. 24. Thus considering them, let us inquire whether the contract is champeitous. The attorney at law agrees “to retain on the sums collected twenty per cent, or be paid two .hundred dollars as he shall elect.” This agreement was made when the accounts to be'put in suit were handed to him. In Holloway v. Lowe, 7 Port. 488, the contract was in these words: “In this case of slander, I agree to pay P. P. Lowe fifteen dollars for commencing and prosecuting this suit, together with one-fourth of the damages; but if the said Lowe •is nonsuited in the action for any informality in the pleadings, he is not to have anything.” This court adopted the common law definition of champerty as given by Hawkins, and say that it has been held to cover all transactions and contracts, whether by counsel or others, to have the whole or a part of the thing or damages recovered. The agreement was held to be void for champerty, but the court added — “It is manifestly unjust, when counsel have aided in conducting a suit to a successful termination, that they shall be deprived of a just compensation for their services because of a stipulation for a contingent fee, which is
As this suit is on a note by the assignee of the attorney, and as he cannot recover upon the note, nor, as in the case of Lowe and Holloway, supra, upon a quantum meruit, which can only. be done by the attorney, it is unnecessary to remand the cause.
Judgment of the court reversed.