| Wis. | Oct 17, 1893
We were strongly urged to reconsider the rule laid down in the case of Barker v. Barker, 14 Wis. 131" court="Wis." date_filed="1860-07-10" href="https://app.midpage.ai/document/barker-v-barker-6598479?utm_source=webapp" opinion_id="6598479">14 Wis. 131, holding that the law with regard to champerty, with certain limitations, exists as a substantive part of the common law, and still prevails in this state, and that the question whether a suit is prosecuted upon a champertous agreement is one outside of the real merits of the case, and, although no issue had been formed in regard to it, that, if the fact came to the knowledge of the court in any proper manner, it would refuse longer to entertain the proceeding. It was argued, as doubtless is the case, that the decision in Barker v. Barker, supra, is contrary to the great weight of authority. The rule laid down in Barker v. Barker, over thirty years ago, has ever since been considered and acted on as a substantive part of the law of Wisconsin, and has been frequently recognized in some cases, and in others expressly affirmed. Miller v. Larson, 19 Wis. 463" court="Wis." date_filed="1865-01-15" href="https://app.midpage.ai/document/miller-v-larson-6599379?utm_source=webapp" opinion_id="6599379">19 Wis. 463; Martin v. Veeder, 20 Wis. 466" court="Wis." date_filed="1866-01-15" href="https://app.midpage.ai/document/martin-v-veeder-6599552?utm_source=webapp" opinion_id="6599552">20 Wis. 466; Stearns v. Felker, 28 Wis. 594" court="Wis." date_filed="1871-06-15" href="https://app.midpage.ai/document/stearns-v-felker-6600771?utm_source=webapp" opinion_id="6600771">28 Wis. 594; Allard v. Lamirande, 29. Wis. 502. The doctrine in Barker v. Barker, in our judgment, is founded in sound policy and establishes a wholesome rule. We do not feel authorized to recede from it, in view of the long time that it has been in force without serious questión; and, as the legislature has not seen fit to change it, it is not fit that at this late date we should interfere to do so by judicial decision. It is very clear that the agreement in question is champertous, and directly within the rule laid down in Stearns v. Felker, 28 Wis. 594" court="Wis." date_filed="1871-06-15" href="https://app.midpage.ai/document/stearns-v-felker-6600771?utm_source=webapp" opinion_id="6600771">28 Wis. 594; Lathrop v. Amherst Bank,
A satisfactory answer to the proposition of the plaintiff’s attorney to cancel the agreement and proceed with the action, consists in the fact that there was no one present, representing the plaintiff, authorized to agree thereto. The plaintiff’s attorney could not do so by virtue of his letter of attorney. It requires two parties to dissolve a contract, as well as to make one. The plaintiff’s attorney could not act for the plaintiff in a matter in which they were interested adversely. For these reasons, the judgment of the circuit court must be affirmed.
By the Court.— Judgment affirmed.