Burnham v. Heselton

This is an action against an attorney at law to recover money collected by him on a promissory note. After the money was collected, and before this suit was commenced, the plaintiff settled with the defendant, accepted part of the money collected and gave a receipt in full. But the plaintiff says that this settlement was made in pursuance of an agreement between him and the defendant which was champertous ; and that the agreement was procured by the fraudulent suppression *587by the defendant of material facts known to him and not known to the plaintiff. The presiding justice refused to instruct the jury that the agreement (which was in writing) was champertous ; but instructed them that such an agreement between an attorney and his client was prima facie fraudulent; and that the burden was upon the defendant to satisfy them by a fair preponderance of evidence that he acted "with all due fidelity towards the plaintiff.” With the burden of proof thus resting heavily upon him, the defendant met the plaintiff face to face, and each told his story to the jury; and the jury returned a verdict for the defendant. A careful examination of the evidence fails to satisfy us that it is the duty of the court to set this verdict aside. The evidence was conflicting, and we think the case came fairly within the province of the jury to decide.

Nor do wre think the presiding justice erred in refusing to instruct the jury that the agreement was ehampertous. An agreement, to be ehampertous, must stipulate for the prosecution or defense of a suit. An agreement, which does not provide for the prosecution or defense of a suit, may be fraudulent; or, for some other reason, it may be illegal; but, ehampertous it can not be. No definition has been found in any dictionary, or in any text book, or in any judicial opinion, which does not make litigation an essential element of champerty. Our statute (It. S., c. 122, § 12), wdiich makes the procurement of "any account, note, or other demand, for the profit arising from its collection by a suit at law or in equity ; or brings, prosecutes, or defends, or agrees to bring, prosecute, or defend, any suit at law or in equity, upon shares,” a penal offense, is based on the same essential element. It is, therefore, immaterial whether we look to the common law or our statute for a definition of champerty, for both make a stipulation for the prosecution of a suit, either at law or in equity, an essential element of the offense. An agreement to collect a demand, orto endeavor to collect one, or to enforce a claim, no mention being made of a suit at law or in equity as one of the means to be employed, is not ehampertous. Such a contract may be fully performed without the commencement or prosecution of a suit, either at law or in equity. Scott v. Har*588mon, 109 Mass. 287. In the case cited, the agreement was to give the attorney the first fifty dollars that should be collected by him in the enforcement of a mechanic’s lien for labor on a house, and the court held that inasmuch as the agreement disclosed no undertaking to carry on a suit, it was not champertous. Champerty, said the court, is defined to be, "the unlawful maintenance of a suit in consideration of some bargain to have part of the thing in dispute, or some profit out of it,” " whereupon the champertor is to cany on the party’s suit at his own expense.” And the court cites Hawkins and Blackstone as authorities for this definition. Webster’s Dictionary defines champerty as "An agreement by a stranger, having otherwise no interest, with the plaintiff or defendant in a suit, to supply money, services, information, or evidence, by which to aid in maintaining and carrying on a suit in consideration that he shall receive a part of the matter in suit, as commission or otherwise, if the party with whom the agreement is made prevails; the purchasing a suit, or right of suing; maintenance, with the addition of an agreement to divide the thing in suit.”

In the present case, the agreement of the defendant was "to endeavor to collect a note,” the plaintiff to have seventy-five dollars, if that amount should be collected, and the defendant to have all over that sum, and pay all expenses incurred in the collection; but no mention was made of a suit as one of the means to be employed in the collection ; and no suit was in fact employed. The money due upon the note was collected without suit, the plaintiff accepted the seventy-five dollars, which by the.terms of the agreement, he was to have, permitted the defendant to retain the balance and gave a receipt in full. What was before an executory agreement then became an executed agreement. If the defendant was guilty of fraud, of course the plaintiff is entitled to redress. But, clearly, he can not maintain his suit upon the ground that the agreement was champertous.

The charge of the presiding justice was full and clear, and, in our opinion, free from error. And the jury having found, *589upon competent evidence, that there was no fraud, we think the entry must be,

Motion and exceptions overruled.