Christie v. Sawyer , 44 N.H. 298 ( 1860 )

Bell, C. J.

The suggestion that the plaintiffs’ claim is tainted with champerty and maintenance, seems wholly without foundation. Here was to be no division of the spoil, nor stipulation for any share, as such, of the fund recovered. The plaintiffs were to be paid for their services and expenditures, and nothing more. An -agreement to pay an attorney or counsellor for his services or advances is not illegal. On the contrary, the claim of an attorney for such services and advances is, as is suggested by the plaintiffs’ counsel, one favored by the law, and protected, as far as practicable, by a lien implied by the law itself in his favor. The right to be paid first from the amount recovered upon the claim, by the agreement and understanding of tbe parties, is of tbe same character as that protected by this lien, and differs from the ordinary implied right only in its being perhaps more extensive. It is certainly equally meritorious. We are not prepared to say that the law-relative to maintenance and champerty is not part of our law. The evils against which these laws were designed to guard are as likely to spring up here as elsewhere, if those safeguards were removed. But we think the law might be administered in a very different spirit here at this day, from what it is supposed to have been in a different state of society. So long as the law gives countenance and encouragement to the employment of attorneys and counsel, to aid suitors in the prosecution and defense of their supposed rights, it can not be deemed maintenance for professional men to render their services to those who need them, for the usual and customary compensation. Nor is it material whether the party is in good credit, and able to pay for those services, as the case proceeds, or the counsel has to rely for his compensation upon the success of a cause he believes well founded. It is usual, and in many cases unavoidable, that the expenses incident to a controversy are paid by the attorney in the cause. Such advances are constantly recovered in actions for costs, and there can be no pretense that the payment of such proper and legal expenses, in good faith, constitutes maintenance, whether they are expected to be paid at once, or from the proceeds of the cause. The true notion on this subject is, we think, laid down by Richardson, C. J., in Shapley v. Bellows, 4 N. H. 355, where he says there is a general understanding between attorneys and their clients that the former shall retain their fees and disbursements out of the sum that may be recovered of the opposite party; and it is not uncommon that attorneys commence actions for poor people, and make advances of money necessary to the prosecution of the suit, upon the credit of the cause. Thus a man in indigent circumstances is enabled to obtain justice in cases where, without such aid, he would be unable to enforce a just claim. And we have no hesitation in adopting the language of Lord Kenyon on this subject, and saying “that the convenience, good sense and justice of the thing require that attorneys should have a lien upon the judgments they obtain for their clients;” and see Thurston v. Perceval, 1 Pick. 417.

Maintenance is defined by Hawkins (1 P. C. ch. 83), “an unlawful taking in hand, or upholding of quarrels or sides, to the disturbance or hindrance of common right;” and the same definition is given 1 Russ. Cr. 175; Co.Litt. 368, a; 2 Ch. Cr. Law 234, n. Elsewhere it is said, “it is a malicious or officious intermeddling with a suit that does not belong to him, by maintaining or assisting either party with money, or otherwise, to prosecute or defend it.” 4 Bla. Com. 134; 2 Bish. C. L. 105. It is evident that wrongful intention is an essential ingredient in this offense, since a father may rightfully assist his son in his law-suit by his counsel and his money, and vice versa ; and the books mention other cases in which such assistance is not maintenance. And Hawkins says, (B. I., ch. 83, sec. 28) “ there is no doubt but that an attorney may lawfully prosecute or defend an action in the court, wherein he is an allowed attorney, in behalf of any one by whom he shall be specially retained, and that he may assist his client by laying out his own money for him, to be repaid again.” The bill shows that in this case there was a distinct agreement that the advances should be repaid, and that they should be first paid from -whatever might be recovered in the suit. There is no pretense of champerty in this case, which consists in “a bargain with a plaintiff, or defendant, to divide the land or other matter in dispute between them, if they prevail at law, whereupon the champertor is to carry on the party’s suit at his own expense.” 4 Bla. Com. 135. Here was no agreement for any division of the spoil; no stipulation for any share of the fund recovered. The plaintiffs were to be paid for their services, and repaid their expenditures, and nothing more. And this falls entirely short of the idea of champerty. The plaintiffs, in setting forth their agreement in their bill, have stated a transaction free of malice, or officiousness, or of any intent to disturb or hinder common right; and their statement, being admitted as it is made by the demurrer, we are not at liberty to assume the existence of motives or purposes which would, render the transaction illegal.

2. It is objected that the compromise set up in the bill can not be made the foundation of any claim in equity, because the plaintiff, Christie, was both an agent for the original plaintiff, and for the railroad, of which he was a director; relations in which no man can be permitted to act at the same time. But this objection does not rest on any thing stated in the bill. No compromise is there stated to be made by Mr. Christie. Yarious efforts made by him, as attorney for S. Currier, to effect a compromise, are stated, all unsuccessful, and leading to no result; but the express allegation of the bill is, that the defendant, after full notice of Mr. Christie’s claims, in his absence, and without his knowledge or consent, went to Boston, and himself made the compromise with the committee of the directors of the road, and received the money paid. His efforts to promote a compromise, made as the attorney of an adverse party, can not prejudice his claim. They might be made in the utmost good faith, as to both parties concerned — the railroad having not the slightest ground of complaint. Probably no person knew better what was for the interest of both.

3. It is objected by the demurrer, that the representatives of Samuel Currier are not a party to the bill; but there seems no foundation for this objection, because no relief is sought against them, and because, so far as appears, they have no rights which can be injuriously affected in any way by any decree which can be made in the case, either directly or consequentially.

The question raised by the bill is, if the administrator of John Currier’s estate shall pay the plaintiffs’ claim for their services and advances. In that question the representatives of Samuel Currier have no direct interest. If they had an interest in resisting the plaintiffs’ claim, they should be made parties. Such interest might exist if the assignment to John Currier was in trust, or by way of mortgage, but nothing appears having any tendency to show that but the talk of Samuel Currier, that the assignment was nothing, and was only made to secure him for hay he had of him. But there is no averment in the bill from which it can be legally inferred that the assignment wms not absolute and unconditional. If any such state of facts is relied on, it must be shown by plea or answer, as it does not appear on the face of the bill. Such an interest would exist if the estate of Samuel Currier was liable to make good to the estate of John Currier whatever the latter may be required to pay the plaintiffs ; but there is nothing in the bill from which any such liability can be inferred. As the case is stated, the parties deceased were not co-partners nor co-contractors. Samuel was not a surety for John, nor a guarantor of the claim, so as to be liable for costs. The actual contract was with Samuel, the debt is properly charged to him, no other person being known as a contracting party. In whatever capacity the estate of John may be charged, it is not seen that Samuel’s estate has any change made in its rights or liabilities, except that it may be relieved of this debt. If so relieved it will not be by reason of any apparent right to such relief, but merely that the debt, being once paid by one liable to pay it, is not to be paid again.

4. The great point of the demurrer is, “that the plaintiffs have not by their bill made such a case as entitles them in a court of equity to any relief against the defendant.” Now we suppose that if two persons deliberately, collusively, fraudulently and secretly, make and take a transfer of a claim in course of litigation, knowing that the counsel concerned relies on the agreement of the plaintiff to be paid out of the proceeds of the suit, with the intention to conceal the same, while the suit is going on, and the assignee may thus .reap the benefit of the suit without paying the expenses, there can be no doubt this is a gross fraud, and such an assignment will be set aside as fraudulent. This is the case as it is here alleged and admitted, and it seems clear that the assignment should be regarded as a nullity, so far as it interferes with the plaintiffs’ claim; and the defendant having got into his hands money which equitably belongs to the plaintiffs, should be decreed to pay it over to them.

Independently of the question of fraud, the claim of the plaintiffs seems sustainable even at common law. It is well settled that if one man labors for.another, or renders him service in his business, and that other, knowing' all the facts, stands by and sees what is done, and makes no objection, he is estopped to deny that the labor or service was rendered at his request. 1 Greenl. Ev., sec. 197; 2 Greenl. Ev. 108, and cases cited.

In this case, according to the bill, from a few days after the suit in question hei’e was commenced, this claim became the absolute property of John Currier; its prosecution wrns exclusively his affair and business; his uncle, Samuel Currier, had no longer any interest in it; John Currier stood by and saw Samuel Currier directing the prosecution, as if he was still the solo party in interest; saw these plaintiffs expending their time and money in its prosecution, and made no objection whatever. Neither he nor his representative can .be heard, either in equity or at law, to deny that the services and expenses were done and incurred by his authority, and for his benefit. Though Samuel Currier continued to be the apparent manager of the suit, yet, as he had no interest of his own, he must be regarded as an agent of John Currier, who, seeing him thus active in his business, must be taken to have authorized and requested him thus to act, and can not deny his agency.

This legal claim can not be alleged as any ground for resisting this suit in equity, since the fraud imputed lies at the very foundation of the claim, and is a clear ground of equitable jurisdiction.

Demurrer overruled.