Lead Opinion
RUST, the present appellant, filed his bill against La-rue, the appellee, for the purpose of redeeming some slaves and other articles held by Larue as a pledge. The court belovy sustained the claim of pedemptipn, and on an appeal to-this cour.g the same righqfc was sustained; hut the cause was reversed for some errors imthc details
-, H^rd.in-.,a,nsv^(^(k admitlin^i.!t>'he”iV Rractto Laru.e, and-denying that he.eyei’.© pursu^- the cause' through this ¡court, inu<¡4in» '•had pever^attempted to practise, arid aV-ei;S;tt|| .dertakipg was confined to .tl^e court, hel'q^ there he. had wholly conducted ,,t>he^,cause',v,^!S tendted his services to taking de^ition's.,; not within the purview of his-duty-as. c©tu^ li,di-tor -in the cause, - until the whole prewar was completed. lie denies that - be hv.fr ábf-jíd the oause,- and alleges that the only colour ,to*¡s®$h allegation was, that Rust was imprudent- i-riHjt ‘about the suit during its pend'énc$‘ and h.ejwaá that^as the; case rested much Qn parol testifnorfy,, wiquld, hy his idle talk, destroy the suit, as. .aware that, the opposing party .was watphipg; the^t vefsatlon,of Rust, to obtain from hirmsome leobf^sljc aud-ito prevent this, he had threatened- Rusty-if naiuMiit his chattering about -the caas.% -bey'ja^ abandon it; but never did sp, uá he-j " . menace Jp resi-rah'' Rust and for his benefit. drlé*6$|é|¡| that he met with Rust in Frankfort,¡^^rin'g .a rt this court, at the term when the Gcjfus'ehwas that Rust proposed his staying for the ¿purpose-ing the cause,Imd that he refused td do-ft;‘mrhfadii^ Rust that his contract did not compel him to-.cro- so,*, aaP* that his official diíties in coh^r-ess then* Required -li¥s|ap «t-e-ntlon there, so that be could n.of, and. did'not, ptf#.* He-ndmits his absence when the caus-e was fksb t pilftait in the court below; but avers that tbe cause -was fuj%i prepared-, and that he had engaged Charles. A. TOi^SrJ liffe, Esq. a professional gentleman of ■acknowledig'&oh talents, tongue the cause in his stead; but Mr./W'ihkr liffe was prevented from attending that co.urt by sickness; that afterwards, discovering t-hat Rust had-employed other counsel, he immediately took-up.and discharged the note for forty dollars, given as a fee, and offered to pay Rust the remaining ten, which had been paid; but Rust refused to receive it. He exhibits this note in court, and alst> the ten dollars^ to be delivered to'Rust. He avers tJi^j|Rust brought to him the opinion of the appellate c*o$Tt, which.he had caused to be |^¡r '"
, híffie-court1 bélovHirst decreed to Rust two-th,irds of tke-lflaves, and to pay the two-thirds of the mortgage ¡pghey due, and retained the cause, as to the remaining third, to abide the contest now raised between Hardin, Rjijsst and Larue; and finally,-on the hearing of that cdfSfiqversy, decreed in favor of Larue, that he should rfjdspp» the remaining; third in discharge of the contract From this decree Rust has
'** - It is now contended for the appellant, that after-the, ca-.o|>éehad progressed through this court, .and a decree, ■vJt&sfherie directed in the court below, the aftitudelpf-the}pities- could not'be’altered, and that it was in.com¡M^nl-foiyLarue to introduce or set up any claim which. prevent him from restoring the slaves.,
a;bill ofreview will lie to a decree directed ,.thís-coürt; it |s unnecessary now to enquire, as the answer of Larue, filed after the return of .the cause from tps’court, does not seek to review or change the de-CTee^o-'Rfoa-t Larue could not set up an$jpñaim calcula-, feá to defiSit the decree against him in whole or impart, Which he might-have set ufi before tlfkfinal hearing, is readily admitted; but his answer now under consideration is not of this character. It yields to the principles, of-the decree as settled by this court, and is -in affirmance-of them, and claims the one-third- as a purchaser o'fthe benefit of it. Although this answer is styled by the’writer, an amended answer, yet it is not®éntitíed to. that name. It is purely supplemental, and alleges facts which have occurred since the decree, and shows that according to the principles of the decree, by subsequent events, he is entitled to one third, Suppose that Larue had purchased out the whole decree from Rust himself, or had by operation of law become entitled to the slaves, ■ could it be contended that Rust must still go on and obi tain the decree, and take frorn|?|,j,m the estate? We aonceive not; and we perceive nmf'mproprjety, accord-
'‘'dt-'i^fuíbftérHirged'on the'paid ofthe a’p'péllanqytiíiit xs'gntirfhotís and' u nc o'ns c i e nti o u s, ffñd fti'drawe o'pglit hbj¡; te be^éüfolded hy the chance Hot., d|,oJthfeHv'e 'adáWrbr,‘1;K'hf the prospect of success' was verj^doubtful,' •dfíd. so proved i fit he end, and tiidt ií-á|&í rltkbd all’his sdiVic'eMh’ á doübtful cause', whith tBj''fé*maine d so lbfig ih rlj'ritest, a,s to idse ifitich an vipKíefShd ,#é-ea‘flñot ’ '0¡¡$‘{£& tíSe‘diS¡iagénisation"%ás wholly contingent1,'that it is too’ enormous'tó p'reéru.de ‘the aid'bf'a ctfá’ftceííor.
■'% -fe ’fitihily cbhtetrd'ed, that tlikdoatratt-' w’ás'Tna'de IfcftWhjskptirtids sending in lh%*?elatictí of .coaáSjSre^nd ■flight,'‘ádd4htt -obé madd^h rtxdh ákthtiiihd'fe ¿f* ccfeh-di^ñí$,ítóf£^'dt feé süp'p'oríedf l!tita,'írijé’,<'*'s^’ch á#e'vWwfetl with ?f very jealous eye b^y tlreNdWttcél'lor, alfdhhán'j' sikh'li&'vé'bekd é'étfMíM, '^¿♦'feorftf^l'boaí-p¿á¥ed: té’ áfcdqpt' a heaséndílfe cdmjyensáfíofs-'íhT't herir ’s^^tfees. "-Mdfel 'oftbe“!Q'fi/sds,' MJw^frei*}"‘wíiich^xiít; of ‘íji'fe^kátüi'e, Wííí be TO¿tó$ id* h'é eó'ñcdrning cOfttraets ' itmfe afte'r crdkfisél Wa'S^eñgdgeá', ‘^¡a^befdfe the'tetai-tóffi'^d'ktfte sdit.’ - íífeé'qhhM&'tBerí fe, <6stñ *i?hé cotí-at kljie' RM'átd^p.^jírtl %'e. ákll^'ct'tbrthe slwe*¿®é|!fe¡''W1e’,péi^i%e.’i#o!wWtre'ásbtí‘'i¥l^,íhshcs.TM
We, therefore, conceive, as no unfairness is} shown in obtaining this contract, but it was the best the employer could do, according to his own history of the transaction, as others charged hirb a greater certain fee than he was able to give, that the contract ought not to be set aside on this ground.
But we cannot dismiss this contract without considering another objection to it, which has not been expressly made and debated at the bar, and which is of a still more serious nature. It is clear, that the supplemental answer of the appellee, setting up the contract, must be considered as a bill for specific performance; and the circumstance of the writing being assigned to the per-^on who holds the possession of the estate to be divided, cannot place him in a better altitude than the original holder stood, «jp6 ancient and long neglected,,lmt still valid provisions existing in law against champerty and maintenance, must bear against it. Champerty, which is maintenance of the strongest character, is nothing else than an agreement to aid in a suit, and then divide the thing recovered; and there is no doubt, that this contract fully comes up to this definition. It is true, the answer of the complainant, below does not expressly make this point; but every fact suggested or alleged about it, in the pleadings of all the parties, as well as the writing itself, shows that it is an agreement of this character. Can the agreement, then,, be specifically enforced? The doctrine is well established, that equity will not carry into effect an agreement against the policy of the law, any more than one against its morality. It is not necessary that we should discuss the question, whether champerty be Sr.be not an offence against morality, or only a prohibited, act. Be it whichsoever it
The decree, therefore, dividing this property, must be reversed with costs, and the cause remanded, with directions to the court below to decree to the original complainant in that court, the redemption and possession of the remaining third of the slaves, on the same principles as the other two 'thirds have been decreed, leaving the validity of the contract to be hereafter tested in a.court of law, if the parties resort to that mode.
Rehearing
presented the following petition fora re-hearing: ■
The appellee, Hardin, for himselfand also;for Larue, respectfully solicits of the coart, a re-hearing of thk cause. The contract between Hardin and Rust, this court has, in substance, decided void, because the same amounts to champerty.
Hawkins defines that offence in the following words: uAnd now we are cometo the second species of maintenance, called champerty, which 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.”
Now, although the definition of Rlackstone is much, more favorable to prove the position hereafter attempted to be established, than Hawkins’, &c.; yet it is be-, lieved that Hawkins is correct, because whatever act would amount to maintenance, would, if the person guilty of the maintenance were to get as a consideration therefor, part of the thing s»e.d for, amount to the of-fence of champerty. ' The converse of the proposition (whatever fugitive dicta there may be to the contrary) must be equally true, that no agreement for a part of' the thing in dispute, can be champerty, unless the con-, sideration given for such part be maintenance.
To enumerate all the intermedlings in a suit, which, amount to maintenance, is surely unnecessary. The object both of the common law and the- statutes of England, was to prevent the officious interference of a person, in a suit to which he was no party, and to prevent powerful men from so interfering, as to pervert justice. Hence we see, that it was not maintenance for a person to assist his relation, whether by blood or affinity, or a master his servant, &c. -Nor was the rule intended to prevent a person involved in law to obtain advice and the assistance of persons learned in the law. See 15 vol. Yiner, 148.
It 'will be coMgnded, that this contract does not. come within the common law northe statutes of England, because there must be the lis pendens at common law. See Haw, 537. Although Hawkins seems 4© suppose money advanced before suit commenced, is within the mischief; yet h»- admits the same is not within the law. The different statutes, of England, which the court will see in 1 Hawkins 64.7, expressly speak of the suit then pending. The court will see from the contract,, that th.e same was made before suit commenced!
Tlie next positionewhich will be attempted to be’supported, is, that the consideration Hardin was. to give Rust, was not maintenance; but was,such duties.as professionally he could legally render. Although the-situ-. alian of a lawyer- in this country, is widely different from either a counsellor or an attorney in England; because it embraces parbof both characters, with no law prescribing the limifsof-his fees, or out of what fund the- client shall pay, ,1’ehyisSg the same free like' other
In opposition to that text of law, we find in 15 Viner 149, an adjudged case, the 32-Charles II. “a counsel-lor took a bond of his client, conditioned to convey one half to him of the estate, on recovering the whole. The court declared that the bond ought to secure what was actually disbursed, and make a reasonable allow anee for care, &c. in the recovery.”
The court will see from the principle of the above case, that the-court did not consider it champerty; because, if they had, they must have declared the bond void. They declare that the bond shall secure what ought justly to be paid; and on account of the undue advantages' taken by the counsellor of his client, the chancellor prevents the further enforcement of the contract' in the samo case cited, in Newland on Contracts, page 457, when the author, is investigating the power of the chancellor over contracts unfairly made, between a counsellor and his client. In 5 Comyns 18, it is said, that it is not maintenance for a father to en-feoffhisson of the land pendente lite, for his assistance. What is the reason of this rule? Answer; because it is not maintenance for the son to assist the father, and he is expressly within the exceptions to the statute above cited.
There can be no reason for extending the law of cham-perty to counsellors, when in the discharge of their professional duties. Ifthey be evilly disposed persons, they will encourage litigation as well for a fee in money or ether thing, as a part of the matter in. dispute. It is frequently more convenient for thelitiglnt to give, contingently, part in contest; because he may not have any thing else to give, and without the aid of the matter in contest, he can never sue for his right, not having otherwise the means to employ counsel, the precise case here. Rust declares that he had tried to employ counsel, and for want of funds he could not do it; and Hardin' wras the only man he could meet with,> who would undertake it for a part of the matter in dispute.
There is yet another point of view in which this question ought to be considered. Is it maintenance for a person to assist in the prosecution of a suit, when he has an interest in the subject-matter sued for, before the suit was commenced, whether that interest be equitable or legal? The answer must be in the negative. See
' The court will see, that the statutes against champerty in England, so far as the same respect land, are reenacted in New-York.
The case relied on by the court in their opinion, is taken from 2 Atkinsj itbeing the same relied on by Mad-d.Qcks, That was a coillract which related, in part, to a
There is yet another consideration, worthy the attention of the court. At common law, it was maintenance to buy a thing in suit or a chose in action; yet these contracts have ever been held valid in equity, and at law they are now recognized. Is not the whole common law doctrine of champerty and maintenance, as it respects the buying and selling of every thing not connected with land, whether the title to the same he legal or equitable, in suit or not, .virtually and substantially overruled and. rendered entirely obsolete? No <case can be found, unconnected with land, either in England or America, for the last one hundred and'fifty years, declaring those contracts void;,but on the other hand, numerous cases, both in law and equity, supporting them. As it respects the selling land, when the grantor was out of possession, there was an express statute of Henry the eighth, against it. A reference is made to Chitty on Bills, page 9 to 13; 1 Fonblanque 213 to 216; and 4 Dunford and East 340. ■ The court is also referred to the different suits of Rogers against Conner and Conner against Rogers. They will see, that Rogers purchased from Henning’sheirs', their interest in their father’s estate, with a view to sue for the same, and agreed to give for it one hundred pounds. Both those contracts were supported in the first instance, by the court of appeals. After an interlocutory decree, Conner amended his answer, and stated a purchase from one of the heirs, who, at the time he sold to Rogers, was an infant. The court permitted the amendment, and altered the decree as to one half the estate. The purchase of Rogers would, according to the notions of the common law, have been maintenance; yet this court sustained it. The contract between Hardin and Rust, does not come within the statute of Edward; for in the language of the statute, the suit must be hanging in court when the bargain is. made. So has it been expounded in 2 Institutes 664, above referred to. Not so in this case. If tested by the common law, it is not within the same; first, because the matter must be in plea; secondly, equity and the courts of common law following its rules, has overruled that part of the common law.
Is not the usage and custom of this country and Vir-. ginia, nay, all America, against it for a number of years.
The opinion given by the court, intimates that the amended answer of Larue, is,, in fact, a supplemental answer, for a specific execution of a contract. Your petitioner is not advised sufficiently to say, that in any case, an amended answer is ever called a supplemental answer. Waiving the question wdiether the same be an amended or supplemental answer, what is the substance and object of it? Is it to obtain a specific execution of the contract between Hardin and Rust? I answer ho; because Larue, who was entitled to Hardin’s claim, was in possession of the negroes. If Hardin had obtained possession of the negroes, could he have filed a bill for a specific execution of the contract between him and Rust? Certainly not; because, being entitled to a third, and having them in possession, there would be nothing to sue about. What was it, the», that made it necessary for Larue to amend his answer? Nothing but to obtain an alteration of the decree as to ene third in dispute; and.it was only the decree that was ,
The court too decided every part of this contract on the part of Hardin, to be fair and correct. That it was an advantageous one for Rust, he admits; because it gave him two thirds of the negroes, when he could not engage counsel upon any other terms; that he had nothing else to give, he declares himself; and that for want of other means, he could get no other lawyer to undertake it; and it is apparent, from the whole case, that it was from his own importunity, Hardin engaged in it. In this kind of case, thus situated, it is believed the court will not feel disposed to apply the old, forgotten and obsolete doctrine of champerty and maintenance to it, unless the very letter of the law is so imperative, that the court cannot do otherwise. To turn the party round to a court of law, is, at once, to decide' against him, particularly as the court give him no lien upon the proper- • ty, until the suit at law is decided; because the whole-record shows Rust insolvent, and his contesting this claim, of Larue, under his contract made with Hardin, shows that he will do any and every thing within his power to defeat the claim entirely.
Your petitioner would have bowed with submission to the opinion of the court, and not have solicited a rehearing of this cause, had the point upon which the court decided, been made in the pleadings, or moved in argument, in either court; but as yet, he has had no op- ' portunity of being hes$d upon a point deeply implicating his character and feelings. Because, there is some reproach to be attached to the commission of the offence of which the court has said he is guilty; and if he must go out of court under the chagrin, mortification and humiliation of such a decision, yet the anguish would be greatly mitigated by the consolation and reflection, that he has been heard in his own defence. Upon an argument of the question he cannot promise much; but yet it will be recollected,- that some of the greatest inventions now known in the world, have commenced from rude and simple hints. One thing he will promise, that labor and diligence shall not be wanting on his part, to investigate
- For the above reasons, your petitioner humbly conceives that it is due to the appellees, that the court shóuld give them a re-hearing; but if not due to them ds a matter of right, he asks it as a matter of favor.
BEN. HARDIN.
A re-hearing was granted and re-argument had, and now, on the 22d of April, 1824, the following opinion was given:
We were more willing to grant another argument this causo, on account of the point on which the court decided against the appellees not having been made the pleadings, or relied upon expressly in the first guineal. At the re-argument, the question has been ably investigated, and the former opinion has been lously but respectfully assailed. But notwithstanding the force of argument employed, and the authorities lied on, however much we may be disposed to secure counsel, the stipulated reiArd for their services, espc-dally where the services, as in this case, have-been performed with diligence and professional skill, and have extended far beyond what a mere counsel or solicitor is bound to perform, yet we are constrained to adhere to our former opinion on the main question.
It has been urged, that the doctrine of champértv, especially as to personal estate, has been,’if not overturned, at least disregarded for the last century or two, and of course that it is obsolete.. It cannot be
It has been insisted that such a contract cannot be maintenance in an attorney, unless he supports the suit in whole or in part, at his costs, and that the services and skill of an attorney, counsel or solicitor, may be thus employed, and rendering them as a consideration for such a contract, cannot make it champerty. It is true, some contracts between counsel and client, have been set aside in equity, as unconscientious, on the ground of the uncontrolled influence of counsel overa client, who is-under the pressure of a law suit, or harrassed with its cares and anxieties; but we do not view this as one of that character, and as said in the former opinion, we would not disturb it on that account. But it cannot be conceded, that the skill and Services of counsel, can-hot be considered a consideration for champerty; for the offence rests not so much on what is given for a share in the matter in contest, as it does in stipulating for; and taking that share. The policy of the law is to leave litigants in possession of their entire interest, and not permit others unknown to the record, to form an al-Iiance'with the litigant, and divide the spoil. This might foster suits and disturb the harmonyof society; and with regard to counsel, the practice is supposed to have a tendency to corrupt the profession, and thus pro-
Rhas also been insisted, that to affect, tbe^contracfc with champerty, it is necessary that it should have been made after suit brought. This requisition has beep held necessary to vitiate a contract, because of the undue influence of counsel over a client alone, whether- the- contract is, or is not to divide the- subject of dispute. Rut notwithstanding some definitions of the offence of' chamr perfy cited at the bar, .seem to favor this.assertion, yet-no case has been found, which expressly requires the pen- • dency of the suit a.t the date of the contract, as an essential ingredient. And-Jacob in his Law Dictionary, title Champerty, page 421, expressly lays it-down, and ip support of his position, cites high authority, that “ the givfng part of the lands in suit after the end of it, to a counsellor, for his reward, is not champerty, if there be do precedent bargain relating to such gift;: but-if it had" been agreed between the counsellor and his client, be-fóte action brought, that, he-should have part for his reward, then it would be champerty; and it is dangerous to meddle with any such gift, since it carries with it a strong presumption of champerty.” • If this authority can be relied on, it concludes the question-as to the two p.oints relied on, and last noticed. So that although the first opinion of this court was formed without such aid. from the investigations of'the haras has been since afforded, yet it will stand the test of scrutiny, on the score of authority and of principle.
It is, however, suggested- that Rust ought- not to he permitted to keep,the forty dollars paid by Hardin for him, fSpfeounsel, who, employed first by Rust, argued the cause in. the court below.
It is true,, that the appellee, Hardin^did pay forty dol-. lars to the counsel employed by Rust, to argue the d*ause on its. first trial, as stated in the first opinion; and itis also true, that the services of Hardin, which seem to have been, faithfully and skilfully bestowed, demands liberal compensation, and he ought not to lose either.} nor do we conceive him or his assignee barred by making the' contract, which we have deemed affected' with champerty, or by any thing decided in this court, from the recovery of these demands. ' On the 'contrary, It is
Rust agrees in his answer, that he is willing to give-Hardin a liberal compensation, and it is evident from the allegations of the pleadings, as well as the admissions of ltust himself, that he is utterly insolvent, and the slaves in question constitute.the only fund out of which this compensation can be taken. Our decision upon the contract between the parties, virtually sets it aside, and if Rust was a direct complainant for that purpose, there would be but little doubt of the-jurisdiction of a court of .equity, and he would be compelled to do equity before-he got relief. And indeed in the present case, he has measurably come to that attitude, and has become complaisant against both Hardin and Larue, for the purpose of getting clear of the written contract; for after he has answered the inte.rrogatories in the supplemental answer of-Larue, he has inserted numerous interrogatories, both to Hardin and Larue, to which they have responded. Under such circumstances, especially as a remedy at law may be fruitless, we conceive that it will do no violence to the rules of equity, to decree to Hardin, or rather his assignee, Larue, not only the forty dollars paid, with its interest, but also a liberal compensation for his services, not only for his aliention and skill as counsel, but also as agent in attending to the necessary requisitions of the cause in taking depositions, procuring witnesses and attending upon the meetings of commissioners and 'such like servv^fe, and thus the whole controversy will be ended at once, without multiplicity of suits or circuity of action. The ■court below must, therefore, on the rei urn of the cause, proceed to fix a:id ascertain by a commissioner or commissioners appointed for that purpose, a liberal compensation for Hardin’s services, as well as the interest on the aforesaid forty dollars, and decree the amount thereof tobe discounted against the hire of the slaves, if so much hire there bo coming to Rust, and if not, then, tha’tso many of (he slaves shall be sold under the (lireo-üon of the court, as will satisfy said demand.