Relation of the statutes to the common law, and modern policy of the law. enforce" (a). Maintenance is properly a general term of which champerty is a species. Their most usual meanings (together with certain additions and distinctions now obsolete) are thus given by Coke : "First, to maintain to have part of the land or anything out of the land or part of the debt, or any other thing in plea or suit; and this is called cambipartia [champart, campi partitio], champertie." The second is, "when one maintaineth the one side without having any part of the thing in plea or suit" (b). Champerty may accordingly be described as "maintenance aggravated by an agreement to have a part of the thing in dispute" (c). Agreements falling distinctly within these descriptions are punishable under certain statutes (d). It has always been considered, however, that champerty and maintenance are offences at common law, and that the statutes only declare the common law with additional penalties (e). Whether by way of abundant caution or for other reasons, the law was in early times applied or at any rate asserted with extreme and almost absurd severity (ƒ). It was even contended, as we had occasion to see in the last chapter, that the absolute beneficial assignment of a contract was bad for maintenance. The modern cases, however, proceed not upon the letter of the statutes or of the definitions given by early writers, but upon the real object and policy of the law, which is to repress that which Knight Bruce, L. J. spoke of as "the traffic of merchandising in quarrels, of huckstering in litigious discord," which decent people hardly require legal knowledge to warn them from, and which makes the business and profit of "breed bates, barretors, counsel whom no Inn will own, and solicitors estranged from every roll" (g). On the other hand the Courts have not (a) By Lord Abinger in Prosser v. Edmonds, 1 Y. & C. Ex. 481, 497. (b) Co. Lit. 368 b. Every champerty is maintenance, 2 Ro. Ab. 119 R. (c) Bovill, arg. in Sprye v. Porter, 7 E. & B. 58, 26 L. J. Q. B. 64. (d) 3 Ed. 1. (Stat. Westm. 1) c. 25; 13 Ed. 1. (Stat. Westm. 2) c. 49; 28 Ed. 1. st. 1. c. 11; Stat. de Conspiratoribus, temp. incert.; 20 Ed. 3, c. 4; 1 Ric. 2. c. 4; 7 Ric. 2. c. 15: and 32 H. 8. c. 9, of which more presently. (e) Pechell v. Watson, 8 M. & W. 691, 700; 2 Ro. Ab. 114 D. (f) See Bacon's Abridgment, Maintenance, A. (5. 250.) (g) Reynell v. Sprye, 1 D. M. G. at pp. 680, 686. deemed themselves bound to permit things clearly within the mischief aimed at any more than to forbid things clearly without it. They have in fact taken advantage of the doctrine that the statutes are only in affirmance of the common law to treat them as giving indications rather than definitions; as bearing witness to the general "policy of the law" but not exhausting or restricting it. It is not considered necessary to decide that a particular transaction amounts to the actual offence of champerty or maintenance in order to disallow it as a ground of civil rights: it will be void as "savouring of maintenance" if it clearly tends to the same kind of mischief. The cases are somewhat numerous, and various in their special circumstances. A full examination of them would lead us to a length out of proportion to the place of the subject here (a). Their general effect, however, is sufficiently clear. Of maintenance pure and simple, an important head in the old books, there are very few modern examples; almost all the decisions illustrate the more special rule against champerty, namely that "a bargain whereby the one party is to assist the other in recovering property, and is to share in the proceeds of the action, is illegal" (b). On this head the rules now established appear to be as follows: to cham (a) An agreement to advance funds or supply evidence for the Rules as recovery of property in consideration of a remuneration contingent on success and proportional to or be paid out of the property recovered is void (c). (3) A solicitor cannot purchase the subject-matter of a pending suit from his client in that suit (7): but he may take a security upon it for advances already made and costs already due in the suit (e). (7) Except in the case last mentioned, the purchase of property the title to which is disputed, or which is the subject of a pending suit, or an agreement for such purchase, is not in itself (a) A singularly concise and accurate statement of the principal decisions down to 1867 will be found in Leake on Contracts, 385-6. (b) Per Blackburn, J. Hutley v. Hutley, L. R. 8 Q. B. 112. (c) Stanley v. Jones, 7 Bing. 369; Reynell v. Sprye, 1 D. M. G. 660; Sprye v. Porter, 7 E. & B. 58, 26 L. (d) Wood v. Downes, 18 Ves. 120; (e) Anderson v. Radcliffe (Ex. Ch.), E. B. & E. 806, 29 L. J. Q. B. 128. perty. (a) Agree ment to furnish money or evidence for litigation on terms of sharing property recovered is void. unlawful (a): but such an agreement is unlawful and void if the real object of it is only to enable the purchaser to maintain the suit (b). We proceed to deal shortly with these propositions in order. a. This rule was laid down in very clear terms by Tindal, C. J. in Stanley v. Jones (c), which seems to be the first of the modern cases at law. “A bargain by a man who has evidence in his own possession respecting a matter in dispute between third persons and who at the same time professes to have the means of procuring more evidence, to purchase from one of the contending parties, at the price of the evidence which he so possesses or can procure, a share of the sum of money which shall be recovered by means of the production of that very evidence, cannot be enforced in a Court of law." It is quite immaterial for this purpose whether any litigation is already pending or not, although the offence of maintenance is properly maintaining an existing suit, not procuring one to be commenced. It is obvious that the mischief is even greater in the case where a person is instigated by the promise of indemnity in the event of failure to undertake litigation which otherwise he would have not thought of. If a person who is in actual possession of certain definite evidences of title proposes to deliver them to the person whose title they support on the terms of having a certain share of any property that may be recovered by means of these evidences, there being no suit depending, and no stipulation for the commencement of any, this is not unlawful for litigation is not necessarily contemplated at all, and in any case there is no provision for maintaining any litigation there may be (d). But it is in vain to put the agreement in such a form evasions if these terms are only colourable (e), and the real agreement is to supply evidence generally for the maintenance of an intended suit the illegal intention may be shown, and the transaction will be held void (d). Still less can the law be evaded by Verbal ineffectual. (a) Hunter v. Daniel, 4 Ha. 420; Knight v. Bowyer, 2 De G. & J. 421, 444. (b) Prosser v. Edmonds, 1 Y. & C. Ex. 481; Harrington v. Long, 2 My. & K. 590; De Hoghton v. Money, 2 Ch. 164. (c) 7 Bing. 369, 377. (d) Sprye v. Porter, 7 E. & B. 58, 26 L. J. Q. B. 64. (e) As a matter of fact, it is extremely difficult to suppose that they could ever be otherwise. slighter variations in the form or manner of the transaction for instance, an agreement between solicitor and client that the solicitor shall advance funds for carrying on a suit to recover possession of an estate, and in the event of success shall receive a sum above his regular costs "according to the interest and benefit" acquired by the possession of the estate, is as much void as a bargain for a specific part of the property (a). So where a solicitor was to have a percentage of the fund recovered in a suit, it was held to be not the less champerty because he was not himself (and in fact could not be) the solicitor in the suit, but employed another (b). An agreement by a solicitor with a client simply to charge nothing for costs in a particular action is not champerty (c). tor in suit client. This B. This rule came to be laid down in a somewhat curious way. (8) SoliciIn Wood v. Downes (d) Lord Eldon set aside a purchase by a can't pursolicitor from his client of the res litigiosa, partly on the ground chase subject-matter of maintenance. But it is to be noted as to this ground that the of the suit agreement for sale was in substitution for a previous agreement from his which clearly amounted, and which the parties had discovered rule anoto amount, to maintenance: and the Court appears to have malous. inferred as a fact that it was all one illegal transaction, and the sale merely colourable (e). The other ground, which alone. would have been enough, was the presumption of undue influence in such a transaction, arising from the fiduciary relation of solicitor and client (of which we shall speak in a subsequent chapter). The Court of Queen's Bench, however, in Simpson v. Lamb (f) followed Wood v. Downes as having laid down, as a matter of the "policy of the law," the positive rule above stated. In Anderson v. Radcliffe (g) unanimous judgments in both the Q. B. and the Ex. Ch. added the qualification that a conveyance (a) Earle v. Hopwood, 9 C. B. N. S. 566, 30 L. J. C. P. 217. (b) Strange v. Brennan, 15 Sim. 346, 2 C. P. Cooper (temp. Cottenham) 1. The agreement was made with a solicitor in Ireland, not being a solicitor of the English Court of Chancery, and the fund to be recovered was in England. (c) Jennings v. Johnson, L. R. 8 C. P. 425. (d) 18 Ves. 120. (e) Cp. Sprye v. Porter, supra. In Wood v. Downes the parties do not seem to have even kept the original and real agreement off the face of the transaction in its ultimate shape. See p. 123. It is to be regretted that the reporter did not preserve the full statement of the facts (p. 122) with which the judgment opened. (f) 7 E. & B. 84. (7) E. B. & E. 806, 28 L. J. Q. B. 32, 29 ib. 128. т (7) Purchase of subject by way of security for past expenses is nevertheless good. The Court of Exchequer Chamber showed a decided opinion that Simpson v. Lamb had gone too far, but without positively disapproving it. In Knight v. Bowyer, again, Turner, L. J. said "I am aware of no rule of law which prevents an attorney from purchasing what anybody else is at liberty to purchase, subject of course, if he purchases from a client, to the consequences of that relation" (a). But the case before the Court was not the purchase by a solicitor from his client of the subject-matter of a suit in which he was solicitor; Simpson v. Lamb, therefore, was only treated as distinguishable (a). The case must at present be considered a subsisting authority, but anomalous and not likely to be at all extended (b). As to the purchase of things in litigation in general, the authorities cannot all be reconciled in detail. But the dismatter of tinction which runs through them all is to this effect. The litigation not in itself question in every case is whether the real object be to acquire an unlawful. interest in property for the purchaser, or merely to speculate in litigation on the account either of the vendor and purchaser jointly or of the purchaser alone. It is not unlawful to purchase an interest in property though adverse claims exist which make litigation necessary for realizing that interest: but it is unlawful to purchase an interest merely for the purpose of But is un- litigation. In other words, the sale of an interest to which a right to sue is incident is good (c): but the sale of a mere right intention is to sue is bad (). lawful if the real to acquire a mere right to sue. A man who has conveyed property by a deed voidable in equity retains an interest not only transmissible by descent or devise, but disposable inter vivos without such disposition being champerty. But "the right to complain of a fraud is not a marketable commodity," and an agreement whose real object is the acquisition of such a right cannot be enforced (e). (a) 2 De G. & J. at p. 445. (c) Dickinson v. Burrell, 1 Eq. (d) Ib.; Prosser v. Edmonds, 1 Y. & C. Ex. 481 (the main part of Lord Abinger's judgment is extracted in a note to Story, Eq. Jur. § 1040h.) (e) Prosser v. Edmonds; De Hoghton v. Money, 2 Ch. 164, 169. Cp. Hill v. Boyle, 4 Eq. 260. |