Duke v. Harper

• Court: Missouri Supreme Court
• Writing for the Court: HENRY
• Citation: Duke v. Harper, 66 Mo. 51 (Mo. 1877)
• Decision Date: 31 October 1877
• Parties: DUKE et al. v. HARPER et al., Appellants.

66 Mo. 51

DUKE et al.

v.HARPER et al., Appellants.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals.

Respondents sued for damages sustained by them, by reason of the breach of a contract for the conveyance by appellants of one-fourth interest in certain property, which was to be recovered in proceedings to be instituted for appellants, and in their name by respondents as attorneys at law, in proper courts. The conveyance was to be made in consideration of the professional services to be rendered by respondents in conducting the legal proceedings necessary for its recovery. Appellants demurred on the ground that the contract, on which the suit was founded, was champertous. The trial court sustained the demurrer, and judgment was rendered for appellants. This judgment was affirmed by the court at general term. By the St. Louis Court of Appeals the judgment of the circuit court was reversed and remanded; and the case is here by appeal from that judgment.

Martin & Lackland for appellants.

The first point we make is, that the statute law of Missouri, declares a contract of the kind referred to null and void, and is found in 2d Wag. Stat., p. 866, Sec. 1, as follows: “The common law of England and all statutes and acts of parliament made prior to the fourth year of James I, and which are of a general nature not local to that kingdom, which common law and statutes are not repugnant to, or inconsistent with the constitution of the United States, the constitution of this State, or the statute law in force for the time being, shall be the rule of action and decision in this State, any law or custom to the contrary notwithstanding.” This has been the law on our statute books ever since the year 1816, when the Spanish law was abolished, and is now the law of this State. It is admitted in the opinion of the court below, that champerty was illegal prior to and in the fouth year of James I. in England.

Then, if it was illegal in the fourth year of James I., there are three questions to settle, in order that we may determine if the section referred to covers the case at bar:

1. Are the English statutes and common law on the subject of champerty of a “general nature, not local to that kingdom?”

2. Are they “repugnant to the constitution of the United States?” and,

3. Are they in conflict with any “statute law in force at the time being or the constitution of this State?”

In order to determine these questions, we will call the attention of the court to the substance of these various enactments. The first we find is the statute of Westminster 1, (3d Edw. 1,) Ch. 2, which says: “That no officers of the king, by themselves, nor by others, shall maintain pleas, suits, or matters hanging in the king's court, for lands, tenements, or other things, for to have a part or profit thereof.”

The statute of West. 2, (14 Edw. 1,) Ch. 49, enacts, “That the chancellor, treasurer, justice, nor any of the king's counsel, nor clerk of the chancery, nor of any justice or other officer, nor of any of the king's house, clerk nor laymen, shall not receive any church nor advowson of a church, land or tenement in fee, by gift, nor by purchase, nor to farm nor by champerty, nor otherwise so long as the thing is pending before any of our officers; nor shall he take, nor receive a portion thereof.” Then follows the penalty.

The statute of 28 Edw. 1, Ch. II, referring to the foregoing acts, says: “That the king wills that no officer, nor any other (for to have part of the thing in plea,) shall take upon him the business that is in suit, nor none upon any such covenant shall give up his right to another. * * * * But it may not be understood hereby that any person shall be prohibited to have counsel of pleaders or of learned men in the law for his fee, etc.”

1st Rich. 2d, Ch. 9, makes any gift or feoffment of land or goods in dispute or under legal proceedings, void. And by 13 Edw. 1, Ch. 49, “No person of the king's house shall buy any title where the thing is in dispute.” In 32 Hen. 8, Ch. 9, it is enacted, “That no one should buy or sell or obtain any pretended title to land unless the seller, his ancestors, or they by whom he claims have been in the possession of the same.”

Now, are the foregoing enactments of a “general nature,” “and not local to that kingdom,” in the language of our statute? We most unhesitatingly assert that they are general, and not local. That at the time of their enactment in 1816, by the Legislature of this State, they were the law of the realm, and were in force over every inch of British territory, and were not in the slightest sense of the word local in nature. They were as general in their nature in England, as any act of Congress on the question of finance, revenue or customs, is general in the United States. Dwarris on Statutes, p. 384; Cooley's Black., Vol. 1, p. 86; Law & Eq. Rep., 1 Chan. Div. 573, in re Attorney's and Solicitor's Act, Oct., 1873; Scobey v. Ross, 13 Ind. 117; Sedgwick v. Stanton, 4 Kernan 289; Sweet v. Poor, 11 Mass. 549; Brinley v. Whiting, 5 Pick. 348; Arden v. Patterson, 5 John. Ch. 44; Byrd v. Odem, 9 Ala. 755; Sessions v. Reynolds, 7 Miss. 130; Wilson v. Nance, 11 Hum. (Tenn.) 189; McGoon v. Ankeny, 11 Ill. 558; Deshler v. Dodge, 16 How. 622.

2. The mere fact that there is no stipulation in the contract, that the attorneys are to pay costs, does not take away the taint of champerty. This contract, it is true, is silent on that point, but it is evident that the suit has to be prosecuted at the cost of either the parties themselves or the attorneys. Now, there is no stipulation that the parties are to pay costs, and as to who are the responsible parties, is a matter of implication. We contend that the implication that this duty falls on the lawyer, is stronger than that it is the duty of the party to the suit, and we submit that so meager a defense should not be permitted to override the statute of our State and the high authority cited herein by appellants. Scobey v. Ross, 13 Ind. 117; Holloway v. Lowe, 9 Por. (Ala.) 488; Evans v. Bell, 6 Dana 479; Thurston v. Percival, 1 Pick. 415; Lathrop v. Amherst Bank, 9 Met. 489; Merritt v. Lambert, 10 Paige 352; Wallis v. Loubat, 2 Denio. 607; Satterlee v. Frazer, 2 Sandf. S. C. 141; Sedgwick v. Stanton, 14 N. Y. 289; Ray v. Vattier, 1 Ham. 132; Weakly v. Hall, 13 Ohio 167.

Davis, Thoroughman & Warren for respondents.

1. The overwhelming weight of authority is, that an essential element, if not the gist of the common law offense of champerty, is the agreement on the part of the champertor, “to carry on the party's suit at his own expense.” Without this ingredient, we submit that no agreement of an attorney for the prosecution of a suit upon a contingent fee payable out of, or in proportion to the amount recovered, has been held in any well considered case in this country to be champertous. Blackstone's Comm. Vol. 4, p. 135; Kent's Comm. Vol. 4, p. 447; Chitty on Contracts (5th Am. Ed.,) p. 675; 2 Chitty Crim. Law, p. 234; 2 Story's Eq. Jur., Sec. 1048 and notes, Secs. 1050, 1053; Bouvier's Law Dict. 218; Boardman v. Thompson, 25 Iowa 487; McDonald v. R. R. Co., 29 Iowa 170; Benedict v. Stuart, 23 Barb. 421; Ogden v. Des Arts, 4 Duer 283; Sussdorff v. Schmidt, 55 N. Y. 319; Hoyt v. Thompson, 1 Selden 347; Stearns v. Felker, 28 Wis. 594; Allard v. Lamerande, 29 Wis. 502; Ex parte Peit, 2 Wall., Jr. 563; Bayard v. McLane, 3 Harr. 139, (Del.); Major v. Gibson, 1 Patt. & H. 48, (Va.); Tapley v. Coffin, 12 Gray 420, (Mass.); Hoffman v. Vallejo, 45 Cal. 564; Martin v. Clarke, 8 R. I. 389.

2. While we insist that the contract in question was not champertous, even at common law, we submit further that the entire doctrine is at variance with our State legislation and institutions. The form of government, state of society and organization of courts existing in England, and which gave rise to the acts of Parliament on this subject, were so materially different from those existing in this State, that those laws must be regarded as local, and not consistent with our institution. There, the fees of attorneys were fixed by law and taxed as costs, while here their compensation is left to the agreement of the parties, and in the absence of fraud or improper conduct, should be enforced like any other contract between man and man. Bentnick v. Franklin, 38 Tex. 458; Richardson v. Rowland, 40 Conn. 565; Matthewson v. Fitch, 22 Cal. 86; Hoffman v. Vallejo, 45 Cal. 564; Ogden v. Des Arts, 4 Duer 283; Mahoney v. Bergin, 41 Cal. 423; 1 Selden, 347.

HENRY, J.

“Champerty,” says Hawkins, “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.” Sir Edward Cokes' definition is similar, and he says it was an offense at common law before any statutes were passed on the subject, and cites Bracton and Fleta to support his position. Blackstone defines champerty to be “a bargain with the plaintiff or defendant campum partire, to divide the land or other matter sued for between them, if they prevail at law; whereupon the champerter is to carry on the party's suit at his own expense.” Bouvier's definition of the offense is the same as Blackstone's. Cooley's Blackstone, fourth book, 435; Bouvier's Dictionary, volume 1, 219. In a note to Cooley's Blackstone, Judge Cooley observes that “the tendency of late has been to confine these offenses (maintenance and champerty) within bounds somewhat narrower than those indicated by the older authorities,” page 135. In Lathrop v. Amherst Bank, 9 Met. 490, the court said: “No doubt is entertained that the earlier doctrine as to maintenance has been very essentially modified.” At the date of the American revolution the English common law was in this country learned from Blackstone. He was the standard authority, and in his commentaries, more than in the works of any other English author, did the lawyers of that generation study the English...