20 Wend. 212 | N.Y. Sup. Ct. | 1838
This case was kept under advisement until this term, when the following opinion was delivered :
Several grounds are taken in the bill of exceptions, which were all overruled as frivolous at the May term, except the single one that the covenant was given for unlawful maintenance. That objection certainly would not have occurred to us, and I think we should have overruled it also, without argument, had it not been for what was said by Bayley, J. in Bell v. Smith, 7 Dowl. & Ryl. 846, 854; 5 Barn. & Cress. 188, S. C. and S. P.
The case of Bell v. Smith was an action against Bell for a total loss on a policy of insurance on goods, effected to and in the names of Smith and others; the interest being solely in Arnet, Gibb, Robertson and Wimble, and the policy being effected on their account. The action was commenced and tried in the C. B. where Arnet was received as a witness for the plaintiffs and a bill of exceptions taken. To remove his interest, Jirnet had, before suit brought, released all his interest to the plaintiffs. The court of C. B., notwithstanding, had ordered Jirnet and his co-assured to indemnify the plaintiffs against the costs; whereupon the plaintiffs, and the co-assured, and Lachlan & Robertson entered into an indenture of three parts, reciting the interest of the parties, the commencement of the suit, its object, the order of indemnity, &c. Then, by the same indenture, the assured in consideration of 10s. assigned all their right to Lachlan & Robertson, who covenanted to indemnify the plaintiffs, and these in consideration of 10s., released all claim for costs against the assured. Jirnet was then examined on his voir dire, and admitted that the plaintiffs were agents for him and his co-assured in effecting the policy. A verdict and judgment passing for the plaintiffs, on his testimony with other evidence in the cause, and error being brought to the K. B. by Bell, the sole question was whether Jirnet remained interested notwithstanding his own release and the indenture. The K. B. were unanimous in reversing the judgment, on the ground that he, with his co-assured, were still liable to pay the costs to the attorney on record of the plaintiffs, the suit evidently having been brought under their express or implied authority. In the course of Parke’s argu
On this case being mentioned at May term, we "were desirous that search should be made in order to see whether the doctrine thus advanced had been at any time acted upon by the English courts 5 but counsel have failed to produce any case in which that has been done. On the contrary, it is impossible not to see that," taken in its full extent, the doctrine would impugn the principle on which the English courts themselves allow the interest of witnesses to be removed. The defendant’s bail is an incompetent witness for him; yét ever since 1653, Anon. Styles, 385, it has been held that other bail ihay be received in his place, and he be thus made competent. This may be equally condemned as an expedient to maintain a defence. It is doubtless maintenance; but it is lawful maintenance, as is said of giving gold or silver to a poor man, to maintain his plea, and the like, which is called maintenance" justifiable, in respect to the motive. Vin. Abr. Maintenance, (Q) pl. 1, and cases there cited. The becoming bail, and suing for indemnity were once, it seems, questioned as unlawful maintenance, but that was denied. Id. Maintenance, (E) pl. 1. Giving bail being lawful in itself, the case in Styles, and the constant prac
I pass over the practice of restoring competency by release as too common to need a support by cases. That Jirnet had released his interest to the plaintiffs below in Bell v. Smith would not, so far as it went, have been questioned as a mode perfectly lawful. And yet this is many times to- give up an important claim by the witness, as a residuary legatee or otherwise, for a nominal consideration, and the direct purpose of maintaining the suit. He is at the time a cestui que trust a party suing, as Jirnet was, through his trustee; yet no one would question his right to come in on parting with his interest. What is the difference in principle between parting with an interest in that form and making an| assignment as Jirnet did 1 That very mode was resorted to in Soulden v. Van Rensselaer, 9 Wendell, 293, by the owner of the chose in action under whose direction the suit was brought, after he had been released by the attorney for the plaintiff on record. That would have been the precise case of Jirnet, had his attorney released him. He had been discharged from his liability to indemnify the nominal plaintiffs, and it was not much insisted that he stood liable to the defendant for his costs. That was fdeemed a more serious difficulty in Soulden v. Van Rensselaer. The court got over it on the reason assigned by Mr. Justice Nelson, that Smith, another cestui que trust, to whom the witness had assigned, was liable in the first instance; and that the court would subject the witness only in
In the case of Lake v. Auborn, 17 Wendell, 18, a witness had retained the attorney for the plaintiff, and owned the note on which the suit was brought, and an hour or two before he was sworn as a witness, and for the purpose of removing his interest
The great principle on which the doctrine of illegal niaintenance rests, is, that by allowing the power to let in third persons as parties or privies to the suit, strong men may be introduced
■This view of the question renders it unnecessary to pronounce definitely upon the proposition strenuously contended for in argument, that, besides champerty in contracts concerning pretended titles, and a conspiracy to move and maintain suits, retained by the Revised Statutes, 2 R. S. 576, § 6, and id. 577, § 8, sub. 3, 2d ed., we have no such thing as maintenance remaining in our law. The revisers, on introducing the new statute certainly proposed the abolition of the law of maintenance, with the exceptions mentioned, 3 R. S. 2d ed. 828, note to § 8, 9 ; and in furtherance of that object the statute of 1801, 1 R. L. of 1813, 172 to 174, which embodied the old English law of maintenance, is expressly repealed. 3 R. S. 151, 2d ed. pl. 62. The policy of the old law, so far as its main principle was concerned—danger from the influence of strong men—had already been much questioned by several of our judges, as inapplicable to our social condition. Kent, Ch. in Thallhimer v. Brinckerhoff, 3 Cowen, 644. Marcy, J. in Campbell v. Jones, 4 Wendell, 310. It is evident from their remarks, that the ancient provisions both of the common and statute law were regarded as in great part obsolete in this state ; and, in the argument of a late case in England, with all the watchful jealousy of the feudal age, its reported cases and statutes still claiming ascendency in the tomes of Westminister Hall, unrepealed and unimpaired, an eminent serjeant (Mr. Wilde)
But be the English law as it may ; with us, at least, I should apprehend it would now be very difficult to say there can be a case of maintenance beyond the purview of our new Revised Statutes. Indeed the contrary was not very strenuously insisted upon in the argument of the principal case. Our attention was called to the evidence, as possibly furnishing ground for saying that the
A new trial must be denied,
See the case of Benedict v. Hecox, decided in the supreme court, and affirmed in 4he court for the conection of errors, 18 Wendell, 490.