Lancy v. Harvender
| Decision Date | 04 May 1888 |
| Citation | 16 N.E. 464,146 Mass. 615 |
| Parties | LANCY v. HARVENDER and Trustee. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.M. & T.C. Day, for plaintiff.
The question in this case seems to be whether champerty must, as a matter of law, be inferred from the terms of the agreement between the parties, and it is submitted that it cannot be because the plaintiff does not thereby agree to bring any suit or other process for the recovery of defendant's claim. Scott v. Harmon, 109 Mass. 237. Plaintiff thereby neither agrees to pay expenses of any suit, nor to have nothing if a suit is not successful. Id.; Blaisdell v. Ahern, 144 Mass. 393, 11 N.E. 681. It does not follow, from the fact that the defendant was to "pay no expense," that the plaintiff was; for there might be none to pay. It does not appear that any suit or proceeding of any kind was brought in any court by the plaintiff, either in his own name or that of the defendant. The plaintiff had no interest in defendant's claim, and no control of it by said agreement, nor the right to receive the proceeds thereof, and in this respect the facts are more favorable to the plaintiff than in Scott v. Harmon, ubi supra. It may be reasonably inferred, as champerty was not in fact intended, that the provisions of the agreement regarded as obnoxious were simply prompted by the extreme caution of the plaintiff's employers, and to serve as a caution to him. Champertors are such as move pleas and suits, or cause them to be moved, either by themselves or others, and prosecute them at their own charge, to have part of the thing in variance, or part of the gains. 33 Edw.I., A.D.1304; 4 Bl.Comm. (Cooley's Ed.) *135; 2 Bish.Crim.Law, § 401. At most, the transaction this case discloses was an undertaking by the plaintiff to collect, or aid the defendant in collecting, his claim upon a percentage. The tendency of decision is to confine these cases (of champerty) within narrower bounds than those indicated by older authorities. 4 Bl.Comm. (Cooley's Ed.) 135, note; Lathrop v. Bank, 9 Metc. 489. In order to sustain the ruling of the court below, this court must find that the agreement ex vi termini imports champerty.
George Z. Adams and Geo. R. Blim, for defendant.
By the agreement the plaintiff was to have one-half of the amount recovered, and was to make no charge for his services and expenses; and the action is not to recover for services rendered and money paid, but for breach of the agreement. The agreement was clearly champertous under the decisions of this court. Thurston v. Percival, 1 Pick. ...
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