Duke v. Harper.

and Loan, for defendant, contended that the agreement was champertous and void. Messrs. Hall and Garden hire insisted that it was not champertous because there was no stipulation that Crow was to "supply money to carry on any suit on condition of sharing in any land or other property gained by it." The lawyers on both sides were of high standing at the bar, and seem to have assumed that the common law of champerty was the law in this State. SCOTT, J., delivered the opinion of the court and observed: "As to the objection that the contract was champertous, it may be answered that there is nothing on the face of it showing that it is obnoxious to such an imputation, nor was there any evidence in support of it." This was all that was said in the opinion on that subject. We think the clear inference from the language of the court is that it regarded the common law of champerty as in force in this State. That case is also an authority for the position that to render a contract champertous, the party stipulating for a portion of what may be recovered as a compensation for his services must likewise agree to bear all or a portion of the expense of the litigation. The contract was clearly champertous according to the older English authors, for it was stipulated that, if the road was established, Crow was to have all the damages that might be assessed to Harmon on account of the condemnation of his land for that purpose. This is the only case we have been able to find in the Missouri Reports, and we are satisfied that it is the only one that has ever been before this court, until now, involving this question.

Section 1, page 886, 2d volume Wagner's Statutes, is as follows: "The common law of England and all statutes and acts of Parliament made prior to the fourth year of the reign 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 laws in force for the time being, shall be the rule of action and decision in this State, any law, custom or usage to the contrary notwithstanding." Although we adopted the common law without the qualification that it be applicable to our condition, the courts would be at liberty to declare that any portion of the common law inapplicable to our condition and circumstances, does not obtain here. But there is nothing in the law of champerty as expounded by Blackstone and Bouvier, and the American courts in the adjudicated cases which we have eited, that is not applicable

Duke v. Harper.

to our condition. The race of intermeddlers and busy-bodies is not extinct. It was never confined to Great Britain, and the little band of refugees who landed from the Mayflower on the coast of New England were not entirely free from the vice of intermeddling in the concerns of other people. It is as prevalent a vice in the United States as it ever was in England, and we do not see but that a law restraining intermeddlers from stirring up strife and litigation betwixt their neighbors is wholesome and necessary, even in Missouri. A man having a doubtful claim to property in the possession of another, who would hesitate to incur the expense of testing its validity, will readily agree that one who will bear the burden of the contest, and take part of the recovery for his pay, may institute the suit in his name. Such contracts are champertous and should be so held on principle everywhere.

The contract under consideration, however, is not champertous, because while the attorneys agreed to receive as a compensation for their services, as such, a portion of the property in controversy, they did not bind themselves to pay any portion of the expenses of the litigation.

We do not agree with the Court of Appeals that "the whole doctrine of champerty and maintenance is a relic of a state of things long since passed away," and we affirm its judgment, not because champertous contracts are not void in this State, but because the contract in question is not champertous. All concur.

Affirmed.

NOTE BY THE REPORTER.-The Supreme Court of Iowa, in Adye v. Hanna, 47 Iowa, 264, held that an agreement by an attorney to pay any judgment that should be finally rendered against his client in a certain suit, in consideration that the latter would appeal the case and pay the attorney a fee for conducting the same, was void as against public policy, and could not be enforced by either attorney or client. The court say: "In another respect it is in conflict with the policy of the law, which promotes and upholds purity and justice in the administration of remedies in the courts. The attorneys bound by the contract become liable in the place of their client. They have the most powerful motive to pervert justice and corrupt its source, in order to escape the liability they have assumed. They are officers of the court, and as such ought to be trusted by judges as well as clients. Their duty does not require them to pervert the law or deceive those clothed with the power to administer it. On the contrary, it forbids them, under the heaviest penalties, to do any act that may have such an effect. They are to aid the courts in the administration of justice. Their duty requires them to endeavor to secure to their clients his rights under the law and nothing more. For such services the law will secure them compensation from their clients. It requires neither arguments nor explanations to show what great tempta tions would be placed before the attorney to violate his duty, and to endeavor to corrupt the fountain of justice were he to take the place of his client, and become responsible for all liabilities incident to a decision adverse to time. The law will not permit members of the legal profession to be assailed with temptations so dangerous in their character. They have the most grave duties to perform in the administration of justice; they stand before

Duke v. Harper.

the world, as a class, distinguished for honor, integrity and public virtue. The law will be careful to recognize no rules or principles, which in their application to the practice of courts or business of attorneys, may tend to corrupt the legal profession, or rob it of the high character it has always maintained."

In Schomp v. Shenck, 40 N. J. Law, 195, an attorney, not a counsellor, undertook to set aside a will for a client, upon the agreement that he was to have five per cent of the recovery in case of success, and such allowance as the court might make him out of the estate, in case of defeat. The Supreme Court, in an elaborate opinion, sustain the agreement, declaring that the law of champerty and maintenance does not prevail in that State. The court make a distinction between attorneys and counsellors, saying: "I do not find anywhere that it was the common-law rule, that irrespective of the law of maintenance, an attorney at law could not stipulate for his compensation. Such contracts were undoubtedly regarded with great jealousy by the courts, and were very generally discountenanced by the legal profession, and were seldom enforced, and were not unfrequently set aside by courts of equity. But the idea that attorneys were subject to the same disability that an advocate was, in regard to contracting with their clients for their remuneration, has no foundation in legal history or adjudged cases."

In the leading case of Kenedy v. Brown, 13 C. B. (N. S.) 677, Chief Justice ERLE confined his proposition of incapacity to make contracts for compensation, to advocates. While the New Jersey court admit that the weight of American doctrine is against such incapacity yet they say they cannot concur in that view, as the only foundation for the rule "was its supposed efficacy in sustaining the honorable standing of the advocate." This of course is obiter.

In the same case, on the point of champerty it was argued "that a stipulation to bear the expenses of the litigation is an essential ingredient in the offense of champerty." But the court say, "the authorities do not sustain, but on the contrary, they overthrow this contention. The consent of the attorney to give his service is in effect a stipulation to contribute largely to the ordinary expense of a suit, and consequently it would seem to follow, reasoning upon general principles, that such an arrangement must be deemed illegal wherever the statutes in question are in force." But they conclude: "It is obvious that the system that had grown up under these laws relating to maintenance was not altogether in harmony with the habits, needs and business of modern life, and this consideration has helped me to the conclusion to which I have arrived, that the doctrine of maintenance has never had a foothold in the jurisprudence of this State."

Bouvier defines champerty: "A bargain with a plaintiff or defendant, campum partire, to divide the land or other matter sued for between them, if they prevail at law, the champertor undertaking to carry on the suit at his own expense. This offense differs from maintenance in this, that in the latter the person assisting the suitor receives no benefit, while in the former he receives one-half or other portion of the thing sued for. On the other hand, Coke in 2 Inst. 564, says: "An apprentice or attorney cannot contract to have any part of the thing in demand, after the recovery;" and in Box v. Barnaby, Hob. 117, it is said: "I hold that if an attorney follows a cause to be paid in gross, that is champerty." There seems to be a distinction between a layman and a lawyer as champertor. To constitute the offense on the part of the layman, he must contribute in money to the expenses of the action; but the lawyer is held to contribute by his services. See Coughlin v. N. Y. Cent. & H. R. R. R. Co., ante, p. 75.

In Thurston v. Percival, 1 Pick. 415, an agreement by which an attorney and counsellor was to receive a percentage of the money, was held void. The suit was pending in New York, and the attorney did not act as advocate, being prohibited from doing so by the laws of that State. It did not appear that he contributed any money, and that point was not specially raised. The court spoke with disfavor of the state of the law, and allowed a recovery quantum meruit.

In Key v. Vattier, 1 Ch. 132, an attorney furnished the means to contest the suit, and was to have a portion of the recovery. The agreement was held void. The court emphasize the statement that the defendant "was to be at no expense," and in the definition of champerty make the payment of the expenses an ingredient.

Brown v. Beauchamp, 5 Monr. 417, was not a case of an attorney, and in defining the offense of champerty, the furnishing of money is omitted, the court saying, "the unlawful intermeddling or upholding constitutes the offense."

Singleton v. St. Louis Insurance Co.

Rust v. Larue, 4 Litt. 417, was a case of an attorney,, and the court define champerty, an agreement to aid in a suit, and then divide the thing recovered."

Arden v. Patterson, 5 Johns. Ch. 44, was the case of the purchase by an attorney of a claim, and the prosecution of it at his own risk and expense, and for his own benefit. This was held champerty under the New York statute, which then defined it, a suing at one's own costs, to have part of the thing in controversy on demand.

Holloway v. Lowe, 7 Port (Ala.) was the case of an attorney agreeing for a trifling sum and a fourth of the recovery to prosecute the suit. Hell, champerty.

Moses v. Bagley, 54 Ga. 288, holds the agreement to pay costs essential to the offense of champerty.

See Martin v. Clarke (8 R. I. 389), 5 Am. Rep. 586.

SINGLETON V. ST. LOUIS INSURANCE Co.

(66 Mo. 63.)

Life insurance—interest — evidence-statements of insured.

A policy of insurance procured by an uncle in his own favor upon the life of his nephew, in which he has no pecuniary interest, is void.

The burden of showing insurable interest is upon the claimant.

In an action on a policy in favor of one on the life of another, statements of the insured as to his feelings at the time, when not too long before the application to throw light upon the subject, are admissible in evidence; but such statements as to previous ill health are inadmissible.

Parol evidence is admissible to explain the sense of the expression: "spitting of blood,” in an application for life insurance. (See note, p. 327.)

A

CTION on a policy of insurance in favor of plaintiff on the life of John T. Anderson, issued Dec. 12, 1872. The application contained the following questions and answers: "12. Has the party had, since childhood, consumption, bronchitis, spitting of blood,

and if so, which? Answer, No. 15. Has the party now, or has he had a habitual cough, or any pulmonary disease, or is any suspected? Answer, No. 18. Is the party now in good health, and free from any symptoms of disease? Answer, Yes." It was one of the conditions of the policy that unless all the answers in the application were true, the policy should be void. Dr. Adams, a witness for defendant, was asked what statements Anderson made to him at the time he examined him in the spring of 1872, as to his condition and symptoms prior to that time, and as to his having in the past had spitting of blood or a habitual cough; but the court ruled that the witness could detail the statements made to him by Anderson as to his condition and symptoms at the time he VOL. XXVII — 41

Singleton v. St. Louis Insurance Co.

saw and examined him, but not as to his condition at any previous time. The same ruling was made in regard to another witness, not a physician. Physicians were permitted to testify that "spitting of blood" is a medical term, meaning spitting of blood from the lungs exclusively. The defendant asked the following instructions, which were refused: 10th. To entitle the plaintiff to recover in this action he must show some insurable interest in the life of Anderson, and in the absence of any evidence showing, or tending to show, such insurable interest, the jury must find for defendants. 13th. If the jury believe from the evidence that Anderson had at the date of the application, or had had at any time previous thereto since childhood, spitting of blood, from whatever source it originated, they will find for defendants. The plaintiff had judgment.

Henry Flanagan, for appellant.

McFarlane, Jones & Carkener, for respondent; also, R. W. Jones. No interest in the life is necessary at common law. Dalby v. The India and L. Life A. Co., 15 Com. Bench, 365; British Ins. Co. v. Magee, Cook & Alcock (Irish), 182; Scott v. Roose, Long. & Town (Irish), 54; Shannon v. Nugent, 1 Hays, 536-539; Bunyan on Life Ins., p. 11; Law v. London Indisputable L. P. Co., 1 Kay & Johnson, 223; Rawls v. Ins. Co., 3 Am. Law Reg. (N. S.) see note of Judge DWIGHT at page 179, par. 2 et seq.; Bliss on Life Ins., § 3; Trenton Mutual L. I. Co. v. Johnson, 4 Zabr. 576; Chisholm v. Nat. Cap. L. I. Co., 52 Mo. 213. The burden to show the policy void is on defendant. Peltz v. Long, 40 Mo. 532; Sumner v. Summers, 54 id. 340; Cheltenham v. Cook, 44 id. 29; Sherwood v. Saxton, 63 id. 78-84; Gardner v. Armstrong, 31 id. 535; Shannon v. Nugent, 1 Hays, 536; Lewis v. Phoenix M. Ins. Co., 39 Conn. 100; Piedmont & Arlington L. I. Co. v. Ewing, 3 Cent. L. J. 686; Evers v. Life Asso. America, 59 Mo. 431.

HENRY, J. Plaintiff sued defendants on a policy of insurance issued by the St. Louis Mutual Life Insurance Company, on the life of John T. Anderson, procured by plaintiff, who paid the premiums, and was to receive the amount for which said life was insured by said company, on the death of said Anderson.

Plaintiff was an uncle of John T. Anderson, but it was neither alleged nor provea by plaintiff that he had any pecuniary interest in his life, and the mere relation of uncle and nephew does not con