22 Wend. 403 | Court for the Trial of Impeachments and Correction of Errors | 1839
After advisement the following opinion was delivered:
The first if not the principal objection, which is urged by the counsel for the plaintiff in error against the judgment of the supreme court is, that the covenant upon which the suit was brought was void for maintenance. In answer to this, it is insisted by the counsel for the adverse party, that maintenance was not an of-fence at the common law, and that as the legislature has intentionally repealed all the statutory provisions on the subject, except as to the buying and selling of pretended titles to land, maintenance was not illegal at the time this covenant was given. I have very little doubt that most of the absurd rules relative to maintenance, which are found in the early reports of the English courts of justice, were founded upon the broad and sweeping provisions of the statutes 3 Edward I. ch. 28 and ch. 33, and 28 Edw. I. st. 3, ch. 11, and of several other statutes of the same kind, passed in the reigns of Edward the third and of the second Richard. Probably the term maintenance was unknown to the law previous to the passage of the statutes on this subject in the time of Edward the first; but that species of maintenance called champerty, or Champarty as it was originally spelled, see Year Book, 8 Hen. 5, p. 8, appears to have been an of-fence at the common law. It is unquestionably derived from an old French law term, champart, which was, used to denote a customary field rent, consisting of a certain part of. the crops in kind ; which answers to the ordinary case in this country of renting a farm for a part or share of the produce. 3 Guyot’s Repert. de Jurisp. 85. Champerty, therefore, was probably first' used in England as a law term,
I have therefore examined the case now under consideration to see if it could, upon any view of the facts, be brought
No pecuniary consideration passing directly between the plaintiff and the defendant was necessary, to support the new guaranty. The injury which the plaintiff might sustain by relinquishing the guaranty of Feeler, was the real consideration, and that was sufficient. If there was any intentional fraud, or illegality, or any conspiracy to maintain a false suit, or to impose upon the court, Mott was not a party to it, or cognizant of it. He is in the same situation as if the defendant, without seeing either him or his counsel, had executed and delivered this guaranty to Feeler, to carry to Mott and get a release from his original indemnity. If the business had been transacted in that form, I think no court upon this evidence could have supposed that the defendant had sustained the allegations in either of his special pleas.
For these reasons I think the judgment of the court below should be affirmed.
On the question-being put, Shall this judgment he reversed 1 the members of the court divided: four answering in the affirmative, and seventeen in the negative. Whereupon the judgment of the court was affirmed.