
    W. E. Jones vs. W. F. Davidson.
    1. Contract. Construction. In a contract between two parties whereby they agreed to prosecute and collect certain pension claims — assign-' ing to one the duty of preparing the papers, and to the other that of procuring the allowance of the elaitns, and stipulating that the profits are to be equally divided between the parties after a deduction by the latter of five per cent, upon the amount; the word profits, as therein used, imports the nett amount after deducting any proper expenses incident to the business.
    2. Evidence. Bill of discovery and answer in aid of suit at law. When they may be used as evidence. Practice. A respondent to a petition of discovery in aid of a suit at law, cannot produce his answer-thereto as evidence for. himself. It is admissible at the instance of the adverse party alone, and it is for him to determine whether it is to be admitted as evidence or not, and it is proper for him to produce his petition not as evidence for himself, but in order to let in the answer, and if such answer be admitted by the court at the instance of respondent without intentional waiver of exception at the time, the objection of the petitioner, thereto, is good at any stage of the proceedings before verdict. Thus, where the defendant in an action of assumpsit filed his petition of discovery against the plaintiff, which the latter answered, and produced his said answer as evidence for himself upon the trial without objection, and the defendant offered to read his petition as evidence for himself, which being objected to, was excluded; whereupon he moved to withdraw the answer from the jury, such motion to exclude the answer should have been allowed.
    3. Same. Same. When petition of discovery evidence against petitioner. A petition of discovery is no evidence for the party who filed it — nor in general is it evidence against him in a trial at law, being considered as the mere suggestions of counsel to elicit disclosures in the answer; but as the answer is to be taken as the most cogent proof against the party who filed it, being his deliberate statement on oath of the facts of the case, it would seem that when the petition is sworn to, and can no longer be considered as the suggestions of counsel, it may in such case be read as evidence against the person who filed it. Per Totten, J.
    
    4. Contract. Illegal execution of valid contract. Effect of, upon the remedy of joint contractors as against each other. The remedy of one of two joint contractors as against the other is not effected by illegal acts of the latter, done without the knowledge or consent of the former, in executing a contract valid in itself. Thus, two parties engaged with each other by a written contract, legal in itself, to prosecute certain pension claims against the general government; and the one without the consent or acquiescence of the other, and unauthorized by the contract, made a champertous arrangement with a client, by which he realized for his services in collecting one of the claims designated in the contract, a considerable fee. Held : That in an action by his co-contractor against him for his proportion of the fee, he could not avail himself of this illegal transaction to avoid a recovery.
    FROM DAVIDSON.
    Tbis was an action of assumpsit instituted in the circuit court of Davidson county, by W. F. Davidson against W. E. Jones. In 1852 the parties entered into a contract, in writing, to collect and prosecute certain pension claims against the Federal Government. The claims were described in the writing, and among them that of the heirs of Captain Thomas Gray, an officer in the army of the revolution. The terms of the contract were, that the plaintiff was to prepare the papers in each of the cases, and the defendant to have them audited and allowed at Washington; and the profits to be divided equally between them,, exclusive of five per cen-tum on the amount, which was to be retained by the defendant. It seems that each of the parties had been engaged in the same business before, and that this contract was entered into as to the claims designated, in view of a probable conflict between them in attempting, severally, to secure the collection of said claims. The plaintiff, Davidson, in pursuance of the contract, prepared the papers necessary for the investigation of the claim of the heirs of Captain Gray, and others, and forwarded them for the signatures of the claimants, but was answered that the defendant, after the execution of the contract, and before the presentation of the papers prepared by him, had. already procured of the claimants under the Gray claim, a power of attorney to act for them, executed to himself. Upon this latter claim, the defendant recovered of the government $5,607 02, under a contract made before the recovery, that he was to have for his services one half of the amount recovered. This amount of $2,750 was paid by the claimant-to Jones, and to recover one half thereof under the contract, Davidson instituted this suit. It appears that Jones procured the assistance of counsel at Washington in the prosecution of the claim, to whom he paid $440 for his services. Pending the litigation in the court below, Jones filed a petition of discovery against Davidson, which the latter answered, and upon the trial this answer was produced by Davidson as evidence in his favor, no exception being taken at the time. Jones then introduced his petition as evidence for himself, which was objected to, and excluded by the court. He then moved to exclude from the jury the answer of' Davidson, which motion the court overruled. His Honor, judge Baxter, instructed the jury, that the agreement did not constitute the parties partners; that neither of them were to be allowed their expenses, or any deduction therefor-; that in other words, it was gross, and not nett profits which were to be equally divided. In reference to the illegal manner of the execution of the-contract by Jones, as affecting Davidson, in this action-the court instructed the jury as follows: “ The prosecution of pension claims against the government is a lawful business, when done in a legal manner, but when done in either of the ways prohibited by the acts of congress, it was illegal, and subject to all the incidents belonging to illegal contracts. It is in contravention of the acts of congress for an agent or attorney to prosecute a claim for a pension under an agreement with the pensioner, that he, the agent, should have a part of the pension, if recovered, for his services, and all such contracts are void. If any such contract was entered into by the plaintiff and defendant for the prosecution of the pension claim which is the subject of this controversy, such contract is illegal and void, and could not have been enforced against the pensioner. And although the pensioner had paid the fee voluntarily to the defendant, yet such is the disgust which courts of justice feel for all such illegal transactions, they will neither hear the complaints nor settle the disputes between partners in iniquity. In such case they would leave the fund where they found it, and turn the plaintiff out of court, to seek his remedy as he -had acquired his right. If it appears from the proof, that Jones and Davidson conjointly, or that Davidson by himself, or that Jones, with the consent and acquiescence of Davidson, had made such a contract for the prosecution of this claim, you will find for the defendant. But the law never presumes fraud or illegality, and the proof of it lays on him who alleges it, and if it fails to show that any such illegal contract was made, or if it shows that Jones made such contract, but without the knowledge or consent of Davidson, the latter’s rights as against the former cannot be affected thereby. In the first case there would be nothing to affect the rights of either. In the second it would not lie in the mouth of Jones to plead his own fraud, in bar of tbe rights of an innocent party. Whatever illegal contract, therefore, may have been made by Jones with the pensioner, if Davidson was innocent of any participation therein, in this suit against Jones, he would have precisely the same rights, as if Jones’ contract with the pensioner, had been legal.” The jury rendered a verdict for the plaintiff, assessing his damages at $1,256 25. The defendant moved for a new trial and in arrest of judgment, which being overruled, and judgment rendered upon the verdict, he appealed in error to this court.
    N. S. BkowN and A. Ewirra, for the plaintiff in error.
    JohN Reed, for the defendant in error.
   TotteN, J.,

delivered the opinion of the court.

Assumpsit: judgment for the plaintiff in the court below, and defendant, Jones, appealed in error.

It appears that the parties entered into a contract in writing, to prosecute certain claims for pensions against the government of the United States. The plaintiff, Davidson, was “to prepare the papers necessary to the investigation of said cases,” and the defendant, Jones, was “to attend to the prosecution, of said claims before the Department at Washington, and the profits to be equally divided between them,” after allowing to said defendant five per cent, on the amount. One of the claims in favor of Nancy Gray, widow of Captain Thomas Gray, was realized in the name of Ransom A. Gray, her only child and heir, she being dead, and tbe sum of $5,507 02, was received from tbe government; One balf of which was paid over by defendant to Bansom A. Gray, and the other half he retains for himself, refusing to divide the same with the plaintiff.

In prosecuting the claim before the Department, the defendant employed counsel, who attended to the case, and he paid him as a fee, four hundred and forty dollars.

Several questions are made. 1st. It is insisted, that his Honor, the circuit judge, erred in his ■ construction of the contract. He stated to the jury, that in the use of the word “profits” “gross profits” were meant and intended by the parties. We do not concur in this construction of the contract. The word profits has a fixed and definite meaning, and in its present use, imports the nett amount made after deducting any proper expense incident to the business. We do not suppose the parties intended to keep'any account of their personal expenses, but the fee paid to counsel seems to be a necessary ■ and proper charge in the course of the business. It should therefore be deducted from the gross amount received.

2nd. The defendant filed his petition for discovery against the plaintiff, under our act of 1848, ch. 177, a proceeding which is similar, in all respects, to a bill for discovery in aid of a suit at law.

The plaintiff answered the petition, and at the trial read his answer in evidence to the jury. The defendant then offered to read his petition, which, on objection, was ruled out by the court, and thereon the defendant moved the court to take the answer from the jury, which was refused.

This practice was irregular. As to tbe petition or bill for discovery, it was of course no evidence for tbe party wbo .filed it: nor in general is it evidence against bim in a trial at law, “ for it is taken to be the suggestions of counsel ” made to elicit disclosures in tbe answer of tbe respondent. Medcalf vs. Medcalf, 1 Atk., 63. Bowman vs. Seybourne. 7 T. R. 3. 2 Selw. N. R., 744. Grisby’s Ev., 427, margin.

But as an answer is considered tbe most cogent proof against tbe person wbo filed it, it being bis deliberate statement on oath, of tbe facts and truth of tbe case — it would seem that when the bill is svborn to, and can no longer be considered as tbe suggestions of counsel, it may in such case be read as evidence against the person wbo filed it.

In tbe trial at law, it was proper for tbe defendant to produce his bill or petition for discovery, not as evidence for bim, but in order to let in tbe respondent’s answer thereto, if he intended to use it as evidence. Its office then is to prove that such a bill had been filed, and to show the. matters of fact to which tbe respondent was interrogated; for it is as to these, that tbe answer must be limited and confined. Grisbys Ev., 429, margin. Bowman vs. Seybourne, 7 T. R., 3. Ewer vs. Ambrose, 4 B. & C. 25.

And when tbe answer is offered in evidence against the respondent in a trial at law, tbe rule is, that tbe whole of the answer responsive to tbe bill must be read; for it. is considered in tbe light of admissions, which must be taken altogether, or not at all. Gilbert on Ev., 51. Grisby’s Ev., 429, margin.

But tbe respondent cannot produce bis answer to a bill of discovery in evidence for himself. He cannot, says Chancellor Kent, in Phillips vs. Thompson, 1 J. C. R., 141, testify for himself, unless at the instance and on the call of the adverse party, and it is for him to determine whether the answer is to be admitted as evidence or not. A similar rule of practice was declared by this court; Turley J., ■ delivering the opinion, in Thompson vs. French, 10 Yerg. R., 458.

Now, in the case before us, the answer was read as evidence for the respondent, without objection, but it was competent to make the objection afterwards, and move its exclusion from the jury, unless there was an intentional waiver of the objection, when the answer was offered in evidence-.

We are not prepared to say it was a case of such waiver, and as the evidence was clearly incompetent, it was error not to exclude it.

3rd. It is argued for defendant, Jones, that the contract was illegal, .it being in contravention of the act of congress, 1838, ch. 189.

This act provides that no sale or transfer of any interest in a j>ension claim shall be valid, nor shall the same be liable to seizure by legal process; “but shall' enure wholly to the personal benefit of the pensioner,” and where the fund is paid' to an agent, he is required’ to take an oath that his relation to the fund,'.; is in accordance with the true intent of the law in this respect.

Now the question is, whether the contract between the plaintiff and defendant is in contravention of the act of congress? And certainly there is nothing on the face of the contract horn which such an inference can be made. It is perfectly clear, however, that the contract made by Jones, the defendant, with Eansom A. Gray, to prosecute his claim for the pension, which was, that he was to have half the amount collected, was a champertous contract, and it is difficult for us to conceive how the fund could have come into the hands of Jones, under this contract, consistently with the oath, if taken, required to be administered to an agent in such ease.

But the plaintiff was no party to this illegal contract so far as any thing appears, and therefore could not be affected by it.

In this view, we cannot permit the defendant to allege his own iniquity to the prejudice of an innocent person.

In the Ohio Insurance and Trust Company vs. Merchants Insurance and Trust Company, 11 Humph. R., 16, where the subject of remedy upon illegal contracts was very much considered, it is •' said that the remedy is not denied, unless the contract grow immediately out of and be connected with the illegal act. Armstrong vs. Toler, 6 Cond. R. 302.

And so if the person pay the debt of ai request, an action may be sustained w money, though the original contract was \p known to be so, when the plaintiff paid the debt. Faikney vs. Reynous, 4 Burr, 2069.

The plaintiff’s rights cannot be affecw^junless he. were a sharer directly in the illegal transaction. Hodgson vs. Temple 5 T. R., 181. Holman vs. Johnson, Cowper, 341.

The instructions of his Honor, the judge, to the jury, on this branch of the case, were, as it seems to ns, perfectly' correct. But for the errors before mentioned, the judgment will be reversed, and the cause remanded for another trial.

Judgment reversed.  