Ackert v. Barker

131 Mass. 436, 1881 Mass. LEXIS 281

• Court: Massachusetts Supreme Judicial Court
• Decided: October 10, 1881
• Status: Published

Opinion

Gray, C. J.

The defendant’s answer and bill of exceptions, fairly construed, show that the agreement set up by the defendant was an agreement by which, in consideration that an attorney should prosecute suits in behalf of his client for certain sums of money, in which he had himself no previous interest, it was agreed that he should keep one half of the amount recovered in case of success, and should receive nothing for his services in case of failure.

By the law of England from ancient times to the present day, such an agreement is unlawful and void, for champerty and maintenance, as contrary to public justice and professional duty, and tending to speculation and fraud, and cannot be upheld, either at common law or in equity. 2 Rol. Ab. 114. Lord Coke, 2 Inst. 208, 564. Hobart, C. J., Box v. Barnaby, Hob. 117 a. Lord Nottingham, Skapholme v. Hart, Finch, 477; S. C. 1 Eq. Cas. Ab. 86, pl. 1. Sir William Grant, M. R., Stevens v. Bagwell, 15 Ves. 139. Tindal, C. J., Stanley v. Jones, 7 Bing. 369, 377; S. C. 5 Moore & Payne, 193, 206. Coleridge, J., In re Masters, 1 Har. & Wol. 348. Shadwell, V. C., Strange v. Brennan, 15 Sim. 346; Lord Cottenham, S. C. on appeal, 2 Coop, temp. Cottenham, 1. Erle, C. J., Grell v. Levy, 16 C. B. (N. S.) 73. Sir George Jessel, M. R., In re Attorneys & Solicitors Act, 1 Ch. D. 573.

It is equally illegal by the settled law of this Commonwealth. Thurston v. Percival, 1 Pick. 415. Lathrop v. Amherst Bank, 9 Met. 489. Swett v. Poor, 11 Mass. 549. Allen v. Hawks, 13 Pick. 79, 83. Call v. Calef, 13 Met. 362. Rindge v. Coleraine, 11 Gray, 157, 162. 1 Dane Ab. 296. 6 Dane Ab. 740, 741. In Lathrop v. Amherst Bank, the fact that the agreement did not require the attorney to carry on the suit at his own expense was adjudged to be immaterial. 9 Met. 492. In Scott v. Harmon, 109 Mass. 237, and in Tapley v. Coffin, 12 Gray, 420, cited for the defendant, the attorney had not agreed to look for his compensation to that alone which might be recovered, and thus to make his pay depend upon his success.

The law of Massachusetts being clear, there would be no propriety in referring to the conflicting decisions in other parts of the country. If it is thought desirable to subordinate the rules of professional conduct to mercantile usages, a change of our law in this regard must be sought from the Legislature, and not from the courts.

The defendant, by virtue of his employment by the plaintiff, and of his professional duty, was bound to prosecute the claims entrusted to him for collection, and holds the amount recovered as money had and received to the plaintiff’s use. The agreement set up by the defendant, that he should keep one half of that amount, being illegal and void, he is accountable to the plaintiff for the whole amount, deducting what the jury have allowed him for his costs. In re Masters, and Grell v. Levy, above cited. Pince v. Beattie, 32 L. J. (N. S.) Ch. 734.

Of Best v. Strong, 2 Wend. 319, on which the defendant relies as showing that, assuming this agreement to be illegal, the plaintiff cannot maintain this action, it is enough to say that there the money was voluntarily paid to the defendant, with the plaintiff’s assent, after the settlement of the suit by which it was recovered; and it is unnecessary to consider whether, upon the facts before the court, the case was well decided.

Exceptions overruled.