
    Weedon vs. Wallace et al.
    
    MAINTENANCE. Champerty. Contract to divide recovery with attorney or other' agent prohibited by act of 1821, c. 66. An agreement by a plaintiff in a pending suit to give an agent, whether his attorney at law or “other person” forconduct--ing the suit, a part of his recovery,is champertous under the act of 1821; and, on the fact appearing, in either of the modes pointed out in the law, the suit must be dismissed!.
    SAME. Same. Construction of the‘phraseology of the law. The words “other person,” employed in the prohibitory clause, were not dropped in the clause providing for the dismission of the suit, and prescribing the method of proceeding, with the design to confine the operation of the law to attorneys, but was the result of negligence in the draftsman.
    John, Augustine, and George T. Weedon were then only children of George Weedon of Culpepper county, Virginia, who died there many years ago. Before his death, John had settled in Montgomery county, Ky., and till that event, Augustine, and George T., the latter of whom was idiotic from nativity, resided with him. After the death of George, the father, John returned to Culpepper, and a division of the deceased’s negroes, some of whom are the subject of this suit, was made between the three brothers; and it was agreed between John and Augustine that if John would take care of, and support and provide for George T., till his death, Augustine would let John have his interest in the negroes assigned to George T.
    John thereupon took the negroes allotted to him and his. idiot brother, and the idiot to Kentucky, where he kept them fill his own death, before which event he had made a will, but what were its provisions it does not appear. He had never been married, but lived in adultery with a Mrs. Woods, who, it seems, was made bis executrix; and who in that capacity, claiming under the will, took possession of all his negroes, and also of those that had been assigned to his idiot brothei. Of course, Augustine and George T. were John’s heirs at law.
    After John’s death Augustine went to Kentucky, and finding the negroes in the possession of, and thus claimed by, Mrs. Woods, on the 24th of January, 1831, he employed Amos Davis of Mountsterling, as his attorney to “prosecute,” as the Written agreement between them runs, “a suit for certain slaves on behalf of G.TiW., which slaves have been devised to sundry persons by the will of J. W., deceased. The said Davis is to pay all cost in the prosecution of said suit, and to pay himself out of the judgment for cost if successful. And if the suit shall be terminated in favor of said G. T. W. to the extent of one half the slaves, I bind myself to pay said Davis $200, and if a less interest, then in proportion; and if a negro of the value of $200 should be tendered to said Davis instead of $200, he shall be bound to take him.”
    The suit was instituted, and Augustine W. being unable to carry it on, employed the defendant, Shackleford, his son-in-law, to conduct it; and gave him authority to compromise the suit and sell the negroes, and out of the proceeds pay himself $300 for his services, over and above his expenses.
    In the fall of 1831, Shackleford accordingly made a compromise, but Mrs. Wood refused to deliver up the negroes until Shackleford procured a bond to be executed by Augustine and his children, with sureties, to indemnify her against any subsequent demands to be set up to the negroes left by John Weedou, by any of his heirs at law.
    Shackleford being unable to give the security required in Kentucky* returned home, and procured William H. Hogans bf Davidson county,'to go to Kentucky, and be himself, and procure his brother, who resided in Kentucky, to become, surety in the bond which Mrs. Woods required. This bond Was executed in March, 1832, by Shackleford and W. H. Hogans; and the latter instructed his brother not to sign it-till Weedon and his children should first give him a bond to indemnify hint s/gainst bis liability to Mrs. Woods, which bond was executed by all of them afte'r their return to Tennessee.
    The negroes were divided between Shackleford and Mrs. Woods by arbitrators, after which, and after the execution of the bond to indemnify her, she delivered to Shackleford those' assigned to' him; namely, David, Ann and her child, and Martin. Shackleford did not bring them home, because Martin had beeri hired out at the beginning of the year for twelve months, and Ann was pregnant and could not be brought away.
    After Shackleford returned from Kentucky, and after the' whole matter had been reported to complainant, in fact after' he had executed the bond to indemnify Hogans, Shackleford' sold the negroes to the defendant Wallace for 800 dollars, that being the full value of them. As to the fact whether Augus-' tine Weedon gave him authority to make the sale, there are' in the pleadings mutual affirmations and denials; and the proof was conflicting.
    In January, 1823, Shackleford employed A. G. Campbell to go to Kentucky for the negroes, and Davis delivered him three, Martin, Ann and her child Caroline; the old negro, David, and Ann’s child, born previous to 1832, having died after the compromise and delivery of the negroes by Mrs. Woods.
    Upon Campbell’s arrival with the negroes about March 1833, complainant procured himself to be appointed guardian of George T.; and about the 28th of the same month'filed a bill in the circuit court of Warren, in the name of the said George T. by himself as guardian, against Wallace and Shac-kleford, in which he states that John Weedon persuaded the idiot to go to Kentucky with him, that he had died and had willed away the negroes of said idiot to a certain Mrs. Woods and her children, &c. &c. This bill was dismissed, because neither of the defendants were residents of Warren county at the time it was filed.
    George T. Weedon, the idiot, died in March, 1834, and complainant is his only heir at law and distributee.
    On the Ilth of October 1834, he filed this bill in the Chancery Court at Franklin, against Shackleford and Wallace, praying to have these negroes delivered up and an account of their hire.
    He alleges that he employed S. to go to Kentucky “to get possession of the negroes, &c. and to bring them to his, complainant’s house, in Warren county, and for his services he was to be compensated liberally out of the hire of the slaves.”
    Shackleford, in his answer, swears that he was to have $300 for his services, and all expenses paid, and that the money was to be raised by a sale of the negroes, not by hiring them.
    There was evidence showing that complainant had repeatedly directed Shackleford to sell the negroes while the suit was pending; to sell them in Kentucky and never bring them home, because the idiot would make more fuss about them .than they were worth. There was no evidence that complainant ever said, in Shackleford’s presence, that he was to be paid by the hire of the negroes. There was evidence that he often said, in the family, that the negroes were to be hired to pay Shackleford; and that after they were sold to Wallace, he directed Shackleford to say, in the presence of the idiot, that they were hired, not sold.
    After this bill had been filed, Lusk Colville came to be an active agent of the complainant in conducting the suit. Whereupon the defendant filed a cross-bill to discover the nature of his interest, and of the contract between him and complainant. The answer of Colville and complainant denied cham-perty, but set out a contract, and averred that it was the only contract between them. It is in the shape of a bill of sale by complainant Weedon to Colville, of all the negroes, for $500, conditioned that whereas Weedon had brought suit for the negroes, and Colville had become his surety for the prosecution thereof, and for the attachment and injunction, and was responsible for the lawyer's fees and expenses of conducting the suits, and for other charges incident thereto, and Weedon had borrowed from him $100 in cash', if he indemnified C. and saved him harmless, and paid him all moneys borrowed, and for all expenses then, or subsequently to be, incurred, and all advances of money afterwards made, then the sale was to be void, else to remain in full force. The parol proof respecting the interest which Colville was to have in the negroes is stated in the opinion of the court.
    January 19.
    At October Term of the Chancery Court, 1836, the cause was heard- before his Honor, Chancellor Bramlitt, who advised till. April Term, 1837, and then declared that the ne-groes were the property of A. Weedon, as representative and heir at law of the idiot; that he was entitled to have them delivered up, upon payment of the expenses incurred in obtaining possession of them in Kentucky, and bringing them to Ten-: nessee; that he was not precluded from having relief by cham-perty, &c. And concludes by directing an account of said expenses, including 300 dollars as compensation to Shackle-ford; also of the hire of the negroes received by the defendants; and that the Clerk and Master report the sanie, and the names and description of the negroes.
    Qn the coming in of the report, a| October Term, 1837, the court ordered that the complainant should pay the balance reported to be due, the defendants, being the difference between the hire o,f the negroes and the expenses of recovering them and bringing them to Tennessee, by the 1st of January, 1838; and if not paid, that the clerk should sell so many of them as might be necessary to make the sum in question, and pay the residue, if any, to complainant, and deliver to him the rest pf the negroes.
    From this decree the defendants appealed in error.
    Cook, for the complainant,
    said — It is admitted by the pleadings and the proof is that the legal title to the property is in complainant. The sale in the lifetime of the idiot was void, and was made also in fraud of his rights. Wallace knew the property belonged to the idiot, and that he was therefore acquiring no title, but was purchasing in fraud of the idiot’s rights.
    Upon the death of the idiot the right vested in complainant as his administrator.
    This bill is filed upon the legal title in lieu of the action of detinue, upon the jurisdiction of this court asserted in Henderson v. Vaulx and wife, 10 Yer. 30, and other cases.
    Then suppose the action of detinue brought, how could thq recovery be resisted?
    
      Purely not by showing that complainant in his individual capacity, connived at, or assented to, the sale by Shackleford, when they were all acting with their eyes open, and upon a subject over which they had no power. Wallace might, perhaps, recover the consideration paid, but he has no title to, or lien on, the slaves. They are in the hands of the administrator as a trustee for the payment of debts, &c.
    If Weedon had sold the negroes and received the full price; no estoppel would apply, because he owns in a different right and as a different person. An estoppel as to A. Wéedorí would not bind the representativa of George T. Weedón. They áre different persons and claim in different rights.
    2. There is no champerty in the casé. Hére a mortgage is given to indemnify Colville as surety for costs and attorneys’ fees, and for money advanced and to be advanced, but no agreement to advance any more. This is a written agreement made about the time of the institution of the suit, and shows clearly the agreement of the parties. The defendants in their answer say this is all the agreement. Now, there doubtless had been some previous conversation on the subject of the agreement, and a suit had before been pending.— The parties, before they consulted their attorney, máy havé Supposed they could make a champer tous agreement, ánd may have spoken of it in that way, and hence the statements of some of the witnesses. But when they come to make the final agreement they steered clear of champerty, and only took a security.
    An assignment of a chose in action is void at law, but valid in equity, and this is the case though a suit is in immediate contemplation, or actually pending. But the assignment must be either entire or not at all. An assignment of a part for prosecuting the suits is champértoús, or perhaps an absolute assignment of the whole for that purpose alone.
    In order to make it champertous, it must be a giving of the' thing, or a part of it, absolutely, for maintaining the suit. Now a mortgage is a mere security for money advanced; the estate still, in equity, belongs to the mortgagor;- and upon payment of the money the estate is discharged of the lien. — • This money, too, the mortgagor is bound tó pay, let the suié go one way or the other. This then cannot be champerty „■ 4 Black’s Com. 135; 2 Co. Lit. 564: 3 Young and Jerv. 129; 3 Cowen 623; 2 McCord’s Chan. Rep. 358, 392; 2 Sim & Stewart 244; Hartley v. Russell, 1 Con. Eng. Ch. Rep. 439; 1 Swanst. Rep. 56, Wood v. Griffiths; 2 Story’s Eq^ 311 to 317; 9 Price, 79; 11 Law Magazine, 375-6-7; 2 Mylne & Keene 59!; 3 Eng. Con. Chan. Rep. 140‘; 5 Bingham, 309.
    December 20.
    3. There is no maintenance in this case for the above reason, and for the following:
    1. It is not maintenance to assist a poor neighbor to prosecute his suits. The object of the law of champerty was to prevent the rich from oppressing the poor; a defence, therefore, of the poor, is not in the reason of the law, and as such not within it. 3 John’s Ch. Rep. 508 to 518,- Penrin v. Dunn.
    
    4. The court would not dismiss a poor man’s suit even i^ he were within the champerty law, because he can, by statute, prosecute his suit under the pauper law.
    5. So far as maintenance is concerned, the suit ought not to be dismissed, because the maintenance suit Was not brought on for trial before the original suit, and no injunction was obtained to stop that suit, by similarity to motions to dismiss for want of security for costs, &c.
    6. The act of 1821 does not authorise the dismission of the suit for maintenance, (or maintenance in nature of cham-pertous conditional contracts,) but only for champerty. That act and the pauper law must be construed in pari materia, allowing poor people every facility for the prosecution of their rights.
    The act, in words only, applies to champerty in its most confined sense, being for a part of the thing, or for more or' less, dependent on the event of the suit, or amount of recovery.
    F. B. Fogg and Meigs for the defendant,
    argued—
    1. The St. of West. I. c. 25 — 2 Inst. 207 — enacts that no person shall maintain pleas, suits, or matters hanging in-court, for lands, tenements, or other things, for to have part or profit thereof by covenant made between them. (A.D. 1275-3 Ed. 1.) See also West. II. c. 49, 2 Inst. 484 (Á. D. 1285, 13 Ed. 1.) Artieuli super Charlas, ch. 11, 2 Inst. 562, and particularly the commentary, which shows that a feoffment, hanging the plea, or the like, to maintain the tenant, is champerty, though given to a lawyer in lieu of his fee. (28 Ed. 1, A. D. 1300. (Statute of Champerty 33 Ed. 1, St. 3, A. D. 1305. 32 H. 8, ch. 9. (A. D. 1540.)
    See all those statutes, the first in the 1st vol. of the Statutes at Large, 50, 111, 144, 150, and the last cited, 2 Sts. at Large, 280 — Ruffhea’s Ed.
    2. This paper is drawn in the form of a mortgage, and it is undoubtedly true that a person interested in the subject matter of the suit, as a mortgagee, though he be no party to the suit, may expend money in supporting the title, without being guilty of maintenance. 1 Peere Williams 375, Sharp vs. Carter; 1 Powell on Mortgages, 203. But this is where there is no adverse possession, and the party becomes interested in the property, as mortgagee, or otherwise, before the commencement of the suit, — not where a party takes a mortgage of property adversely possessed, and for which a suit is pending, as a security for his maintenance, and as a consideration to induce him to maintain the suit. Wickham v. Conk-lin, 8 John’s R. 170. If it be decided that counsel may secure' their fees by taking mortgages of the property in suit, the law against champerty is effectually repealed; and a device is discovered whereby the statutes may be evaded.
    The statute of 28th Ed. 1. ch. 11, enacts that no person shall take upon him the business that is in suit; nor none upon any such covenant shall give up his right to another; and if any do, &c. But it may not be understood hereby,- that any person shall be prohibited to have counsel of pleaders, or of learned men in the law for his fee, or of his parents or next of kin. 2 Inst. 562. Upon this exception in favor of lawyers, Lord Coke says — “Their advice and direction in their profession of law is excepted: but to take any estate in the land, hanging the suit, for maintenance, is to become a party, and is in no sort allowed by this act.” Id. 564. J1 fortiori, no' other persons are allowed to take any estate, &c., the comment being written to show, that the exception was limited to' professibnal advice, to give which is not maintenance, but to take any estate in the property in suit, for any purpose, even to secure remuneration therefor, is champerty, the worst species of maintenance.
    James Campbell, in reply,
    argued that, 1. Upon the original bill, answers and evidence, it is confidently believed no difficulty can be raised in bar of complainants decree, or to prevent an affirmance of the chancellor’s decree. Complainant is here asserting the rights of George Thornton Weedon to the negroes in controversy. He was an idiot as is admitted on all hands and proved, and was guilty of no fraud and could commit none. Supposing complainant had told Shackelford in the life time of Geo. T. Weedon, as is alleged, to sell the negroes, and in pursuance of such authority he did sell them, that would not prevent the assertion in this court of Geo. T. Weedon’s right to the negroes. Supposing that the first suit in the name of Geo. T. Weedon had not been abated, and Geo. T. Weedon had lived, and the suit had progressed in his Geo. T. Weedon’s name, a decree must have gone in his favor for the negroes. Such a case would have been too plain to admit of a doubt. What is the case now presented? Precisely the same in principle. Here is George T. Weedon’s representative asserting his right in this court. This view of the case furnishes an answer to another argument of defendants. They say, if it was' a fraud in Wallace and Shackelford to speculate upon the property of this idiot, it was a fraud in complainant to tell Shack-elford to sell the negroes, and he that hath committed iniquity shall not have equity,- &c. Could this argument have been used if Geo. T. Weedon had lived to prosecute the suit in' his own name? Surely not. And as it could not be used there, neither can it be urged successfully here. We claim the negroes in right of Geo. T. Weedon, and he hath committed no iniquity; but the truth is, there is nothing censure-able in the conduct of Augustine Weedon, except so far as he was misled and imposed upon by the conduct of Shackel-ford himself. Although Shackelford now pretends he sold the negroes under an authority from Weedon, yet the transaction itself shows he did not act for and on behalf of Weed-on, or for his benefit, but in his, Shackelford’s, own name, for his own benefit. There is not a color of a pretence that Shackelford thought he was acting for Augustine Weedon in the sale, or that Wallace considered he was buying the ne^ groes from Augustine — such an idea never entered the head of either of them. The plan then was, not to shelter themr pelves under any pretended authority from Augustine Weedon, but to sell the property of the idiot first, and then to cure all up by means of a guardianship to be obtained of this idiot, and a settlement of accounts with commissioners,
    2. Defendants next come forward and file a cross bill, in which they charge that Colville is maintaining Weedon in the prosecution of this suit, for which he is to receive part of the negroes in controversy, if he succeeds, which, the bill alledges, is corrupt and champertous. To this defendants answer and positively deny the charges, and set forth a mortgage, which contains the only agreement between them, and which is not corrupt or champertous. The first thing to be considered is, are the answers disproved? Here the rule certainly is applicable, that we should reconcile the testimony if we can reasonably do so.
    The whole of the conversation between Weedon and Col-vill, detailed in evidence, taken together, shows conclusively, that Weedon understood himself, not as saying that he had made a contract with Colville, by which he was to give him half or any other part of what was recovered, but only as speaking of what he intended to do. He intended to be liberal with Colville if he gained the suit. There was not the scrape of a pen, that is, there was no contract between them; for he said further, “I have said nothing amiss — if there is any contract let them prove it.” He said he was ignorant and poor and unable to prosecute the suit himself and therefore had employed Colville, &c.
    Now, with this view of the testimony, let us advert to Colville and Weedon’s answer. They both are called upon to state, and do state what contracts existed between them in relation to champerty and maintenance, &c. And they show a written mortgage executed by Weedon and Colville, a,nd they say here is the contract and all the contract. Colville is proved to be an intelligent man, of some legal information; it is clearly inferrible he knows all about cham-perty. Now is it conceivable that he and Weedon would ¡enter into a contract such as is shown by that mortgage, and ¡then afterwards enter into another and a different one, that ¡might endanger the success of the suit.
    :3. But the agreement, as proved, is not champerty, either :by the common ¡law or by statute. It is is not champerty by ¡the common law for a man to help his poor neighbor.
    4. Neither is it champerty by statute. See Act of 1821, ,c 66. The second section of the act only embraces cases x>f attorney and client agreeing to divide the .recovery. If •it is not champerty by statute, it must remain as it w.as at .common law, and by that law it is not champerty.
   Green, J.

delivered the opinion of the court.

It is unnecessary to discuss the merits of the original bill in this case, because, after the most mature deliberation, the court is constrained to dismiss the cause on account of the champertous contract between the complainant Weedon and Colville, his agent for prosecuting the suit.

Where a right to recover is clearly established on the part of a complainant, as a majority of the court think, is done in this case, we cannot but feel great reluctance to dismiss the suit and thereby cut off the means of recovery altogether, because of an act, not in itself immoral, but contrary to public policy, and therefore illegal. But however reluctant we niay feel, when a case embraced by the act of assembly is clearly made out, we have no alternative, but to pronounce the law.

The proof places the existence of a contract by which Colville was to have for his services a share of the negroes, in case Weedon recovered them, beyond doubt. John Pen-dleton says, Weedon told him that “Mr. Colville was to attend to it, and if he gained the suit, he was to give him half.” Arthur Warren told him, “that he had agreed to give Mr. Colville half what they could obtain.” H. D. McBroom states, that in a company of several persons, Weedon mentioned the suit, but witness does not remember his words; but Esquire Taylor told him, that he talked too much — you will injure yourself, somebody will take the advantage of you by talking as you do. Mr. Weedon then said, that he had not said any thing amiss. Esquire Taylor said, you have said enough now for your suit to be thrown out of court, if the opposite party knew it. Mr. Weedon said, he had a right to employ any body be pleased to do the business for him, as he was not able to do it himself. Mr. Weedon further said, there was, not the scratch of a pen between him and Colville, but he, Mr. Colville, should be well paid for his services, and if there was any contract, let them prove it.

The statement of the two first witnesses is direct and positive, and admits of no explanation, but if it needed confirmation, the evidence of McBroom is strongly corroborative of their statement. Weedon had said so much about the contract between himself and Colville, that Esquire Taylor reproved him, and told him, he had said enough to throw his suit out of court. Weedon does not, even when thus warned, pretend to deny, that there was a contract for Colville’s services, but said, he had a right to employ whom he pleased to do his business; that there was not the scratch of a pen between them, and if there was a contract let them prove it. Now if there had been no contract, he would at once have denied the existence of any, and would not have evaded the matter, by saying, there was not the “scratch of a pen, and if there was a contract, let them prove it.” It is clear, therefore, that there was a contract other than the mortgage, by which Colville was to give his personal attention to the prosecution of the suit, and in case of success, was to re-cieve a part of the thing in litigation.

2. The next question is, whether feuch contract is cham-perty, by the act of 1821, c 66, and is of the character, upon proof of the existence of which, the court is required to dismiss the suit?

It is contended by the defendant that the act of assembly only applies to attorney’s at law, and that, as Colville is no % an attorney at law, he is not to be affected by it. The-se-^ cond section of the act provides, that “it shall not be unlawful,' for any party plaintiff, or intending to be a plaintiff to any suit at law or equity to promise or agree to give any greater or less portion of the thing,in litigation, upon any contingency, or upon the’event of the suit; and if any practicing attorney, or other person, with the exception contained in the ancient law, shall hereafter enter into any understanding, promise or agreement with any person who may have already brought suit in any of the courts of this state, or who may hereafter bring suit, or be about to bring suit in any of the courts hold-en in this state, such contract is declared to be void and of no effect. And upon the fact of champerty, or other unlawful contracts being satisfactorily disclosed to the court, where such suit may be depending, in either of the ways hereinafter mentioned, the suit shall be by the court dismissed; and the attorney or attorneys so entering, after the passage of this act, into such understanding or agreement, shall be by the court stricken from the list of attorneys, and shall be disqualified to practice in any of the courts of this state for the term of five years.”

The act then goes on to provide, that a bill for discovery and relief may be filed against the party claiming title, and Iris attorney; or, that the defendant may exhibit interrogatories to the plaintiff, his agent or attorney, for the discovery ..of the matters that are made unlawful by the act.

'That this act applies to other persons as well as attorneys, 'is so manifest, that it does not admit of a doubt. In the first part of the second section above quoted, it provides, that if any practising attorney, or other person, shall make the contract prohibited in the act, the contract shall be void; and upon the fact appearing in either of the ways thereinafter ¡mentioned, the suit shall be dismissed.

Now, although in the subsequent part of the section in-which the character of the proceedings to be adopted is-pointed out, the words, “other person,” are not used, still,, as it has been declared, that if such person should make the contract prohibited by the act, the suit should be dismissed, the obligation to dismiss it is imperative upon the courts. The method thereafter pointed out applies to such “other persons” as well as to attorneys.

Bat to put the matter beyond doubt, it is provided in this same section, that the interrogatories may be exhibited “to the plaintiff or plaintiffs, their agent or attorneys.” .So in the fourth section it is provided, that the interrogatories shall be answered by the “plaintiff or plaintiffs, or their agents,” leaving out attorneys. It plainly appears, therefore, that the omission to mention “other persons,” at some of the places where the word attorney is used, was the result of mere negligence in the draftsman of the act, and not with design to confine its operations to attorneys. A majority of the court therefore think, that it is imperatively the duty of the court to dismiss the complainant’s bill.

Let the decree be reversed and the bill dismissed.  