Elliott v. McClelland

| Ala. | Jan 15, 1850

CHILTON, J.

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, (as the case may be,) that the attestation is in due form. The certificate of the judge must show that he presides over the court, the records of which are attempted to be authenticated by its clerk. In this case, the clerk certifies that he is clerk of the Circuit Court of-Crawford county, in which the proceedings to which he certifies .were had. The judge certifies that he is the sole presiding judge of the seventh judicial circuit in the State of Arkansas, hnt whether the county of Crawford is in the 7th judicial circuit,'neither the certificate of thejudge nor clerk informs us. True, if we look into the record, the proceedings appear toihave been before the judge who makes the certificate, and from that we learn that the county of Crawford is in his circuit; but this cannot aid the defect in the certificate, for until it is properly certified it is no evidence, and if the recitals in the •record be allowed to cure the defective certificate, it is tantamount to holding that the record may prove itself.

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. 24" court="Ala." date_filed="1846-01-15" href="https://app.midpage.ai/document/sewall-v-henry-6502752?utm_source=webapp" opinion_id="6502752">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" court="Ala." date_filed="1838-06-15" href="https://app.midpage.ai/document/holloway-v-lowe-6529364?utm_source=webapp" opinion_id="6529364">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 prohibited by law.” The same case was afterwards before this court upon a quantum, meruit,, and the court say — “The compensation due to the plaintiff for his services in the slander suit ought to have been ascertained precisely as if no such agreement had ever existed. — 1 Ala. 246" court="Ala." date_filed="1840-01-15" href="https://app.midpage.ai/document/holloway-v-lowe-6501277?utm_source=webapp" opinion_id="6501277">1 Ala. Rep. 246.” This case from our own court and the authorities there cited, with the cases cited on the brief of the counsel for the plaintiff in error, are conclusive to show that the agreement in this case was champertous. — See also Story on Con. 411, §581. It is true the agreement was made in Arkansas, but in the absence of proof to the contrary, we must intend the common law, by which the agreement is void, is of force there. The case of Walker v. Cuthbert and Stanley, 10 Ala. 213" court="Ala." date_filed="1846-06-15" href="https://app.midpage.ai/document/walker-v-cuthbert-6503003?utm_source=webapp" opinion_id="6503003">10 Ala. Rep. 213, is unlike the present. In that case the sum to be paid was construed to be for services rendered before the contract was entered into, which was insisted upon as champertous. It was not an agreement to have a portion of the sum of money to be afterwards recovered. The contract before us reserves that right to the attorney; he is to have twenty per cent, on the amount to be collected, or two hundred dollars, at his election. The fact that nothing was collected, and that the party was turned round to the note for two hundred dollars for his compensation, does not purge the contract of its champertous quality; the contract being entire, the unlawful provision for champertous compensation taints it, and avoids the whole.

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.