Ormerod v. Dearman

Decision Date02 October 1882
Citation100 Pa. 561
PartiesOrmerod <I>versus</I> Dearman.
CourtPennsylvania Supreme Court

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas of Tioga County: Of January Term, 1882, No. 142.

Olmsted (with him Larrabee, Niles and Merrick), for the plaintiff in error.—Fornication, not being a felony, or an infamous crime, but a mere misdemeanor, for which there is a remedy by action to the party aggrieved, a prosecution instituted therefor may be settled and withdrawn by consent of the prosecutor. This is expressly authorized by sect. 9 of the Criminal Procedure Act of March 31st 1860: Purd. Dig. 377, pl. 9. The settlement being lawful, a contract to pay professional services for effecting such settlement is not against the policy of the law: Mauer v. Mitchell, 9 W. & S. 69.

M. F. Elliott and F. E. Watrous (Henry Sherwood with them), for the defendant in error.—Fornication, being an offense against public morals, is not within the purview of the 9th section of the Act of 1860, authorizing settlement of prosecutions for assault and battery, or other misdemeanors of a kindred nature, affecting only the individual prosecutor. If the Act be extended to fornication it would also extend to adultery, assault with intent to rape, &c.

Even if this view be incorrect, the law will not aid in enforcing a contract between the accused and his attorney for a contingent fee for procuring such settlement: Hatzfield v. Gulden, 7 Watts 152; Clippinger v. Hepbaugh, 5 W. & S. 315; Bowman v. Coffroth, 9 P. F. S. 23.

Mr. Justice PAXSON delivered the opinion of the court, October 2d 1882.

The learned judge of the court below in affirming the plaintiff's fifth point withdrew the case from the jury. The said point is as follows: "That the charge against J. Dearman proposed to be settled by the alleged contract constituted a criminal offense against the law, and therefore not susceptible of settlement. The most that could be accomplished in such a case would be to induce the prosecutor not to appear and prosecute, and the alleged agreement in this case to pay for such services is void, as being against the policy of the law, and cannot be enforced, and the plaintiff is therefore entitled to recover."

The offence with which the plaintiff below was charged was that of fornication. The woman with whom it was alleged he committed said offense was married and the settlement was made with her husband. The defendant, who is an attorney, alleges that the plaintiff agreed to give him a contingent fee of about $2,000, provided he could succeed in settling the matter so as to avoid a prosecution.

We need not discuss so much of the ruling of the learned judge as holds that an offense of this character is not susceptible of settlement. That is not the question here. Conceding the right of settlement, the important question arises whether a court of law will enforce a contract by which an attorney at law undertakes for a contingent fee to procure a settlement of such a criminal charge and thus prevent its coming into court.

The stifling of a prosecution for a criminal offense, even where it is a mere misdemeanor, and of such a character as to be within the control of the parties, is not a proper subject of a bargain for a fee. This is especially the case where the crime is one which concerns public morals. It would lower the standard of the profession and impair its dignity and...

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16 cases
  • Rhinehart v. Victor Talking Mach. Co.
    • United States
    • U.S. District Court — District of New Jersey
    • May 14, 1917
    ... ... Dickerson v. Pyle, 4 Phila. (Pa.) 259; Chester ... Co. v. Barber, 97 Pa. 455; Ormerod v. Dearman, ... 100 Pa. 561, 45 Am.Rep. 391; Perry v. Dicken, 105 ... Pa. 83, 51 Am.Rep. 181; In re Murray, 2 Pa.Dist.R ... 681; Commonwealth v ... ...
  • Kelly v. Bell
    • United States
    • Court of Chancery of Delaware
    • May 15, 1969
    ...are right all payments made to the Allegheny County communities since 1962 are 'waste' and therefore loss to the Company.4 Ormerod v. Dearman, 100 Pa. 561 (1882); Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865 (1959); Kribbs v. Jackson, 387 Pa. 611, 129 A.2d 490 (1957); Crooks Estate, 316 Pa......
  • Chreste v. Louisville Ry. Co.
    • United States
    • Kentucky Court of Appeals
    • November 30, 1915
    ...the administration of justice, Weber v. Shay, 56 Ohio St. 116, 46 N.E. 377, 37 L.R.A. 230, 60 Am.St.Rep. 743, and Ormerod v. Dearman, 100 Pa. 561, 45 Am.Rep. 391; for services in procuring liberation or pardon of convicts, Hatzfield v. Gulden, 7 Watts (Pa.) 152, 31 Am.Dec. 750, and 2 R.C.L.......
  • Wells v. Floody
    • United States
    • Minnesota Supreme Court
    • March 29, 1923
    ...being contingent upon conviction, was held void in that its tendency was to obstruct public justice. And see Ormerod v. Dearman, 100 Pa. 561, 45 Am. Rep. 391; 13 C. J. 448; note, 4 L. R. A. (N. S.) 212; note, 30 L. R. A. 737. In Moyer v. Cantieny, 41 Minn. 242, 42 N. W. 1060, a contract to ......
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