Nickels v. Kane's Adm'r

• Decision Date: 15 July 1886
• Citation: 82 Va. 309
• Parties: NICKELS v. KANE'S ADM'R.
• Court: Virginia Supreme Court

82 Va. 309

NICKELS v. KANE'S ADM'R.

Supreme Court of Appeals of Virginia.

July 15, 1886

Appeal from decree of circuit court of Scott county, entered 21st August, 1884, in the cause of James L. Shoemaker administrator of H. S. Kane, deceased, against W. H. Nickels seeking to enforce by foreign attachment the collection of a conditional fee, which is set up in the bill. The circuit court decreed that complainant recover of defendant the sum of $2,178.18, with interest from the date of the decree till paid, and costs. From this decree defendant appealed.

Opinion states the case.

H S. K. Morrison, for the appellant.

R A. Ayers, for the appellee.

OPINION

LACY, J.

The suit is a foreign attachment in equity, brought by the administrator of Henry S. Kane, deceased, against the appellant, Wm. H. Nickels, who is a non-resident, under the 11th sec. of chap. 148, Va. Code. There were certain debts, evidenced by the bond of the defendant, which were not controverted. The controversy has arisen, and the contest in this court is over and concerning the following agreement, marked Exhibit " C.:"

We promise to pay Henry S. Kane ten per cent. on the amount that he may succeed in getting the decree reduced, which has been rendered by the circuit court of Scott county, in favor of Walter H. Nickels against the undersigned, William Nickels. As witness our hands and seals, this 31st day of August, 1859.

WILLIAM NICKELS. [SEAL.]

WM. H. NICKELS. [SEAL.]

Henry S. Kane was a lawyer, and a decree had been rendered against the said William Nickels in favor of Walter H. Nickels, on the 25th day of May, 1859, for $6,896.03, and $1,496.47 of interest, aggregating $8,365.50.

An appeal was thereupon obtained to this court; and the case was decided on the 21st day of October, 1867, when this court struck out of the account all the claims against the said Wm. Nickels, prior to May, 1852, when Walter H. Nickels moved from Pattonsville to Estillville, and remanded the case for the trial of an issue framed in this court, and directed to be tried in the said circuit court by a jury.

The amount of the reduction by this court, comprising all the said items of the claim prior to May, 1852, amounted to $2,890.80 of principal, and $614.29 of interest, as set forth in statement A 3 of Commissioner Morrison's report in this cause. We have not seen the original record of the case on the first appeal, and this amount is not stated in the decree of this court of October 21st, 1867, except in the general terms stated above. But the statement of the commissioner, A 3, is not excepted to, nor denied as to its accuracy as to this amount.

The commissioner in this cause made alternate statements as to this claim by statement A 3, allowing ten per centum on the amount of the reduction stated above, with interest on the principal up to March, 1884, from October 21st, 1859, ascertaining the amount due to be $1,201.36.

By statement A 2 the commissioner adopted a different statement, which was as follows:

" When the case went back the issue was not tried, and H. S. Kane died. After the death of Kane, the lawyer, and before the trial of the issue in the circuit court, the parties compromised the case, Wm. Nickels agreeing to pay an agreed amount of $2,500."

In statement A 2 Commissioner Morrison took the original recovery of $6,896.03, and $8,643.60 interest, and deducted the $2,500 paid by Nickels from the $8,043 of interest, and found the $6,896.03 of principal and $6,143.60, the residue of the interest, making $13,039.63 as the amount of the reduction obtained by H. S. Kane by the appeal to this court and its decree of October 21st, 1867, and gave ten per centum on that amount, adding, as in statement A 3, the amount due under the bonds of $124.33 and $92.12 of interest, and showed a balance of $2,178.18 as the amount due under the agreement stated above as Exhibit C.

The appellant excepted, and the court overruling the plaintiff's exception to statement A 2 and A 1, and sustaining the exception which was filed by the appellee to statement A 3, gave a decree for the amount found due by statement A 2.

From this decree an appeal was obtained to this court. The first assignment here is that the contract contained in Exhibit C was champertous, being a contract for a part of the recovery.

Champerty may be defined to be a bargain with the plaintiff or defendant in a suit for a portion of the land or other matter sued for in case of a successful termination of the suit, which the champertor undertakes to carry on at his own expense; and champerty avoids the contracts into which it enters.

Champerty with us must be considered upon the principles of the common law, there being no statute in our code of laws defining it. By the act of December 8, 1792, the legislature defining it enacted thus: " Champertors be they that move pleas and suits, and cause them to be moved by their own procurement or by others, and sue them at their own proper costs and charges, to have a part of the land in variance or part of the gain." Code 1819, p. 558. But this act, as will be seen, was merely declaratory of the common law, as we have defined it above. It was, however, repealed by the code of 1849, and the common law was revived as to that matter, even if the statute had repealed it; for if the common law be repealed by a statute, which is itself...