[143] Opinion of the court by
Judge Burnet :
This action is brought on articles of agreement, executed in Oc-' tober, 1816, between the defendant, Charles Yattier, of the first part, and James W. Gazlay and Marshal Key, attorneys at law, of the second part. The contract, after reciting that the said Yattier had been formerly in possession of, and then claimed title to sundry tracts of land, and also to sundry'notes, bonds, bills, goods, chattels, and moneys, to a large amount, which had begn unjustly taken from his possession, provides that the said Yattier, with a view to have the said property recovered, and in consideration of the covenants on the part of the said Gázlay and Key, constitutes them his attorneys, with power, in his name, to sue for the property, etc., and to take all legal means to recover the same; and that when the same, or any part thereof, be recovered, the said Yattier shall convey to them an equal moiety, *and deliver to them, in severalty, each, one-quarter or fourth part, with such title as he may have. The plaintiff and Gazlay covenant to use their best skill to recover possession of the property, and to save and keep Yattier harmless of and from all costs and charges, in consequence of their prosecution of the same, and if any compromise should be effected, Yattier stipulated that it should be the joint act and consultation of the parties; and the parlies bound themselves in the penal sum of one hundred thousand dollars. The defendant demurred generally to the declaration.
The court are now to decide, whether this contract amounts to champerty and maintenance, and if it does, whether an action can be sustained on it in the courts of this state.
The first question seems to admit of no doubt. The object of the contract was, by action or actions in the name of Yattier, to recover property in the possession of third persons, who held it by claim of title. The plaintiff and Gazlay covenant, as attorneys at law, to institute and carry-on the suits. They are bound to dofray the cost, and as a consideration for their services, they are to receive an equal moiety of whatever may be recovered; and Yattier engages not to settle or compromise the claims without their consent.
Champerty is a bargain with plaintiff or defendant to have part of the land or other thing sued for, if the party that undertakes it prevail therein, whereupon the champerty is to carry on the party’s suit, at his own expense. 1 Inst. 368; 4 Blac. Com. 135; 5 [144] Com., title Maintenance A; Jac. L. D., title Champerty. Every champerty implies maintenance. 2 Inst. 208. Maintenance is an offense that bears anear relation to barratry, being an officious inter-meddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it. It is an offense against public justice, as it-keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression. 4 Blac. Com. 134 ; Hawk. P. C. 240; Do. St. 203. The punishment by common law is fine and imprisonment. 1 Hawk. P. C. 255.
The contract in this case shows that the plaintiff was to intermeddle in the suits of Yattier, by assisting him with his services, and by the payment of cost, which comes most unquestionably within the definition of maintenance. In addition to this, the plaintiff and his partner, in consideration of that intermeddling, are to receive a moiety of the land, or whatever else may be recovered. These facts most unequivocally constitute the offense of champerty.
*The nest inquiry is, can this action be sustained? In this state we have no general statute prohibiting or punishing champerty, and the common law, in relation to the punishment of crimes and misdemeanors is not in force. But although this be the case, it by no means follows that they may be lawfully and innocently practiced, or that the aid of the state tribunals may be had, to sanction and enforce them. The contract between these parties is against public justice, and such engagements have always been considered as injui’ious to the peace and happiness of the community. The nature and moral tendency of actions can not be effected by the manner in which the law treats thorn. If they be in their nature injurious, they must be considered offenses, whether the state has thought it necessary to punish thorn or not. Human legislatures act in subordination to the great Lawgiver. They can not change the nature of actions, or make them intrinsically right or wrong. There are many misdemeanors in this state for which no punishment has been provided, probably because the legislature have supposed that the influence of public opinion would be sufficient to suppress them. In such eases as the one now before us, they might naturally believe that public opinion, aided by the want of a legal remedy to enforce contracts, would afford all the remedy required. However this may be, it is believed that by omitting to provide a punishment in all cases of champerty and maintenance, [145] they neither intended to afford them their sanction, nor to open their courts for their protection and encouragement. Every author that treats on the subject tells us they are against the common law. Wood’s Inst. 413; 2 Inst. 208 ; 4 Blac. 135; Com. Cont. 173.
By the common law, persons guilty of maintenance may be indicted, fined, and imprisoned, or compelled to make restitution by action ; and a court of record may commit a man for an act of maintenance done in the face of the court. 1 Inst. 368; Jae. L. D., title Maintenance. That a court of common law should be required to enforce a contract against the common law, and for which it provides a punishment, would be mysterious; and it would be still more so, that while they are enforcing such a contract, by sustaining an action on it, they should also sustain an action against the plaintiff in that cause, and compel him to make restitution to the party injured by that contract, and that, too, on the ground of its illegality. The inconsistency of such a course is still more strikingly illustrated by the concluding part of the authorities last cited, by which it appears that a plaintiff, in a suit like the present one, may *be committed by the court for a contempt, by attempting, in their presence, to perform the services that constitute the consideration of the contract on which he sues. Or, in other words, that a transaction, so palpably illegal as to be punishable, if attempted in a court of justice, may, when performed, become a sufficient consideration to support an action. To render a contract legal, the subject matter' of it must be not only physically, but morally possible. An agreement can not possess an intrinsical, obligatory form, or sustain an action, in a court of justice, unless the subject matter of it be a thing about which the parties have a legal right to stipulate at their pleasure. An agreement, therefore, to do a thing in itself unlawful, must be void ; for it would be absurd, that an obligation which derives its sanction from the law, should create a necessity of doing an act which the law prohibits. Let these principles be applied to the case before us. The plaintiff covenants to maintain the defendant in sundry suits at law, in consideration of which the defendant agrees to give him the moiety of whatever may be recovered. This covenant, on the part of the plaintiff, is a condition precedent, and must be performed to entitle him to his action. In other words, the law requires him to prove that he has done an illegal act, as a legal consideration to sustain his action; for if the [146] action be sustained, the plaintiff must aver and prove that he ha® maintained the defendant, which is an offense at common law.
Two reasons are assigned, by Powell on Contracts, why an act undertaken against law is void. First, because when the object of a contract is against a man’s duty, it may be presumed that he did not give it his free assent. Second, because the law, by forbidding'the act, takes from the contractor the power of obliging himself to do it; and from the opposite party the power of requiring it to be done. In the case before us, the consideration must be done in order to sustain the suit. If the suit can be sustained, the defendant must have the power of requiring the performance-of the consideration, which is illegal.
There are a variety of cases which show by analogy, that this action can not be sustained. Marriage brokage bonds are void, because they are against the public welfare. Contracts are void if their consideration be illegal or unconscientious. Esp. Dig. 88, 94; Cowp. 793. A bond given to a sheriff to continue a true prisoner is void at common law, because it may be used for the purposes of oppression or extortion. A bond to an alien enemy is said to be void, because it is against public policy. All contracts-against any rule, *or maxim of law, are said to be void, and the very case now under consideration, to wit: an agreement for unlawful maintenance, is given as an example of a contract which is void, because it militates against the public welfare. Pow. 173. Contracts like the one before us are said to be the most odious species of maintenance; should they be sustained, they will probably become frequent. The prospect of obtaining a large amount of property as a consideration for professional services, and the risk of an inconsiderable bill of cost, form a strong temptation to speculate in lawsuits. It may induce men to purchase the right of instituting suits on trifling pretenses, for the purpose of forcing defendants to injurious and ruinous compromises as the most effectual means of purchasing peace. Suits may be brought in-succession against an individual, until his patience is exhausted', and he is reduced to the terms of his oppressor. The ignorant and the weak will be constantly liable to be practiced on; unreasonable portions of their just demands maybe obtained on the representation of difficulties and risks that have no real existence. The-injunction of sacred writ which gave rise to the imparlance, and which invites us to agree with our adversary, will be impeded in [147] its operation. The parties originally interested, and who but from the merits of their claims will be prohibited from settling them, are forced to continue their legal warfare till the expectations of some greedy champertor are fully satisfied.
Such practices are oppressive on the parties immediately concerned. They have an injurious effect on the community at large; they are against the policy Of the law, and ought to bo suppressed.
The counsel who argued this cause have manifested their usual ingenuity, and it is due to them, as well as to the ease itself, that we deliberately examine the grounds they have taken. It is assumed by them as an admitted point, that champerty and maintenance are not offenses in Ohio. If by this we are to understand merely that they are not generally punished by indictment, the position will be granted; but it can not be admitted that they are not offenses in the eye of the law. The authorities before cited show that they are. Offenses do not become innocent when the law forbears to punish them; the moral character of actions-remains the same, whatever may be the punishment provided for them.
It is admitted that the legislative and judicial departments are distinct. It is the province of the one ‘to prescribe, and of the other to enforce the law, and neither has the right to exercise the powers *of the other. We also admit that the right of making contracts at pleasure is a personal privilege of great value, and ought not to be slightly restrained; but it must be restrained when contracts are attempted against the public law, general policy, or public justice. It is also alleged that such contracts were never considered as mala in se. This will depend on determining whether they be perfectly indifferent in themselves, or whether they involve any degree of public mischief or private injury. If the latter, they must belong to the class of actions denominated mala in se, as this appears to be the distinction recognized by the best writers on criminal law. These writers tell us-that maintenance is an offense against public justice; that it perverts the remedial process of the law into an engine of oppression ; that it keeps up strife and contention. The Roman law denominated it the crimen falsi, and the common law punishes it by fin® and imprisonment. It can not, therefore, be indifferent in itself, [148] .and it must be attended with public mischief as well as private injury.
That such contracts have been frequent proves nothing of use to the plaintiff. We can not resort to the maxim communis error facit jus; it has no application to a case like this. But we apprehend that such contracts have been less frequent than the gentlemen imagine. By this contract-counsel stipulate, as a compensation for their services, that they shall receive a moiety of all they may recover. They are to indemnify the plaintiff against costs, -and he is bound not to settle or compromise without their consent. If such contracts have been common, we have yet to learn the fact. It is to be hoped, however, the counsel have been misinformed ; but if not, it is certainly time the law should give a chock to such a practice.
We have been carried back to the origin of laws against maintenance and champerty. They have been traced to the violence of the feudal system and the despotism of rapacious conquerors. This may, in part, be true. Some of the finest principles and rules of the common law took their rise under the same system, and grew out of a state of things that has ceased to exist, and some of them from circumstances that have long been forgotten; but this is no argument against their policy or their obligatory effect. It was admitted in argument, that if such a contract be attended with injury to an individual it is void, but not otherwise. Without stopping to point out the actual existence of such injury, we remark that the law does not usually wait to ascertain the consequences of actions in every particular case, in order to determine their character. Experience ^enables us to judge of the natural -tendency of any particular class of actions, and when that teaches that they are generally unnecessary, mischievous, and impolitic, the law will fix their character and determine them to be against public policy, without waiting to measure the quantum of injury resulting from each particular case. This precaution, however, has been required by the legislature in a case like the present, when it is to be punished by indictment. The fact of the injury renders the act indictable — in the absence of the injury, the matter is left as it was at common law.
The existence of a distinct class of men, whose profession it is to prosecute and defend the controversies of others, is also urged .as a reason against the doctrine on which the defense in this case [149] is predicated; but we do not discover the force of the inference-attempted to be drawn from this fact. It is admitted on all' hands that in England, in New York, in Virginia, and in other states, the contract before us would not only be void, but would be punishable by indictment — yet we find the same class of professional, men existing in those states, constantly employed in prosecuting and defending for their clients. The nature of their employment, and the character of their engagements are not found to be incompatible with the doctrine in question, nor can we see why such incompatibility should be found in the State of Ohio. The rulecontended for may prevent professional men from oppressing the unfortunate, and extorting unconscionable fees from the weak and the timid. It may prevent them from stirring up suits, and prosecuting claims which have neither law nor equity to support them, depending for success on the loss of testimony, the treachery of memory, or what has been denominated the glorious uncertainty of the law. It may prevent them from carrying on one suit after another against the same person, for the purpose of hunting him down and driving him to sue for peace on any terms; hut it can not interfere with the fair and legitimate practice of the profession, as the experience of Great Britain, New York, and other-states testifies.
It is not uncommon for counsel, in the zeal of argument, to resort to extreme cases as a test of principle. This has been done in the case before us. The imagination has been put on the stretch to-get up a case in which the rule might prevent the prosecution of a meritorious claim. But if such a case exist the plaintiff can take nothing from the fact, nor can we admit the propriety or safety of such a course of reasoning. A case may be supposed in which *greatgood would result to the community, from permitting a private citizen to take the life of a culprit running at large, but such a case furnishes no argument against the policy of punishing murder. A man may be reduced to the alternative of starving or stealing, yet the gentleman would not urge this as a reason for repealing the statute against larceny. A debt justly and honestly due may be lost by the statute of limitation, yet a knowledge of the fact has not led to a change of the policy on which those statutes are founded. It may, therefore, safely be admitted that the rule in question may operate .injuriously on some particular individual, as such an admission will neither contradict the existence-[150] of tlie rule, nor shake the policy on which it is .founded. Experience teaches us, however, that such cases are extremely rare, 'if they ever exist. An oppressed citizen, with merits on his side, will seldom want an advocate. A large proportion of the members of the bar have humanity enough to redeem the profession from the imputation which such a case would cast on the whole •corps; and we know of none whose benevolence would with .greater certainty lead them to espouse such a cause, than the gentlemen who urge the possibility of its existence.
The argument drawn from the practice in common life, of stipulating a reward for labor, or enterprise, in proportion to its success, if carried to its full extent will destroy its own effect. It necessarily leads to the removal of every obstruction to the practice of the law, as a profession, and condemns the statute regulating the admission and practice of attorneys. The same policy which permits men in their ordinary business, to stipulate for contingent rewards, throws open every branch of useful industry; but this is not the case in affairs of legal controversy. The practice of the law can not be pursued as a business, at the pleasure of any individual. The right must be acquired in a particular way, and when .•acquired, must be pursued according to certain rules, or it will be forfeited. Why, it may be asked, do these impediments exist when they are not to be found in the ordinary pursuits of life? The answer is at hand: public policy requires them — the peace and quiet of the community require them — legislatures and the safety of parties litigant require them. We find, then, a rule existing in the administration of justice, and in matters of legal controversy, the propriety of which every man acknowledges, but which has no existence and would be unjust in the ordinary pursuits of men. If this distinction be correct, as it certainly is, what keeps us back from the conclusion that a similar difference may exist, as to the *right of making contracts of a particular description. On this head it may be sufficient to say that the whole history of judicial proceedings teaches that there is a, difference in the effects produced on society by contracts for contingent rewards, made by attorneys with their clients, and those made by other men in their common business, and that this difference is sufficient to require a different rule. Were it otherwise the discovery would have been made long before now. It would not have been left to the ingenuity of counsel concerned in this cause to bring it to [151] light. The experience of ages, in countries and states where the ■principle has been recognized and acted on, would have discovered its fallacy, and it would have been exploded.
Great stress is laid on the supposed fact, that the legislature of Ohio have forborne to legislate on this subject. That they have not said to their courts in a case like this, thus far shalt thou go and no farther, and here shall thy power cease. For a moment admit the position, and what will it lead to? Neither more nor less than that they were satisfied with the common law as it stood, which declared the contract void, and did not think it necessary to super-add in all cases a punishment, by way of indictment. As it had been decided that the common law, although in force in this state, in all civil cases could not be resorted to for the punishment of crimes and misdemeanors, the legislature have provided that a certain species of barratry may be punished by indictment. The fair inference to be drawn from the fact is, that they did not believe it necessary to punish that offense generally by fine and imprisonment, but arc willing to trust to the remedy which the common law applied, and which their courts could in part enforce. They might very naturally suppose that the invalidity of the contract, coupled with the power which their courts possessed of punishing acts of champerty done in their presence, as contempts of their authority, would be sufficient to suppress the mischief. But will the gentlemen agree to adopt this course of reasoning in all cases? If we are to look to the statute book as the' depository of all the law which we are at liberty to apply, in the administration of justice, what solitary case can be conducted, on legal principles, to a final judgment. Where are we to find the rules of evidence, and those by which contracts are to be construed and enforced? Where is our guide in the application of remedies to particular cases? There is a remedy by the act of the party injured — a remedy by the act of all the parties concerned — a remedy by operation of law, *and a remedy by civil suit in courts of justice. If these can be applied no farther than they are to be found in our statute book, if that alone is the depository of our powers and the manual of our practice, we should soon find the wheels of justice stopped, and injuries without number would go unredressed. There must be rules of law not to -be found in that book and courts of justice must have the power of enforcing them, whether they have been formally recognized by the legislature or [152] not. The want of such a recognition is not of itself a proof of their non-existence. But some inference may be drawn as to the-understanding of the legislature, from the terms they have used in the twelfth section of the act which-has been quoted. They do not declare it an offense to excite lawsuits, nor do they prohibit it by express bonds. They merely define the punishment that shall be administered, on a conviction by indictment, taking it for-granted that the act was in itself illegal. If they had considered the section as creating a new offense, it is probable they would have used the language which is common on such occasions. But without laying any stress on this circumstance, we may safely inier that the existence of the law is no proof of a legislative-opinion that such contracts as the one before us were not void at common law.
We admit it to bo the policy of our government, that property, illegally withheld from the rightful owner, should be restored. For this purpose courts of justice are established and laws ordained, and if it could be shown that champerty and maintenance were-necessary to the due administration of justice, we might be induced • to believe that they ought to be encouraged. Our earliest impressions, however, have been that they are not only not necessary, but are highly pernicious. These impressions continue, and have-been strengthened by observation and experience. It is probable that this doctrine, at times, may have been carried too far, and that courts of justice, in their zeal to suppress the mischief, have, in some cases, exceeded their proper bounds. It is also possible-that contracts exist, of a doubtful character, to which the rule would be applied with some difficulty, as in some of the cases put by the counsel; but a similar inconvenience may attend the application of any other legal principle to certain cases. This, however, would, not afford a just ground to deny its existence, nor would it justify a refusal to apply it to cases clearly within its operation. It is unnecessary now to say, whether all or any of the cases put by .counsel, for the purpose of illustrating the injustice of the rule,. would *or would not be affected by it. Most probably some of them would not. It is our duty to decide the particular case in hand, and to leave others to be settled when they may be presented for adjudication. We can not, however, forbear to remark,, that some of the cases put, and others of a similar east, are said not to be law, and can not mislead. It is laid down, not to bo [153] maintenance for a man to give another friendly advice, or to render him acts of neighborly kindness, in relation to his lawsuits, and that to be blameworthy, he must be guilty of a contentious, over-busy intermeddling.
Whatever may be the effect of the sale and transfer of real estate, not in the possession of the vendor, it is admitted that our laws allow-the sale of choses in action, and equity will aid in protecting and securing the right of the purchaser; but the analogy between these cases and the one under consideration is too remote to be readily perceived. It is also admitted, that as there is no law prohibiting the sale of a chose in action, so neither is there any regulating the consideration, or the mode of paying it, which is left to the will of the parties. It may be payable in money, property, or personal services, but notwithstanding this admission, we affirm that modes of payment might be stipulated that would be illegal, and that could not be enforced in a court of justice. Instances of this kind will readily occur to every person of reflection. This fact proves, that notwithstanding it is a general rule that men may stipulate for such consideration as they choose, yet the rule has its exceptions, and the case now before us may safely be considered as one of them.
Whatever may have been the merits of the claim set up by Yattier — whatever power he might have had to sell that claim — and although he had an unquestionable right to purchase the professional services of the plaintiff in the prosecution of that claim — yet we can not see the absurdity of saying, that the claim could not be stipulated as the consideration of the service, or the service as the consideration of the claim. To admit this as an absurdity, would be to destroj, all distinctions, and to admit that the legality of a transaction is in no ease to be affected by a reference to its consequences. The sale of a claim may be perfectly innocent — the purchase of professional services may be unexceptionable, and yet the purchase oí those services, by the transfer of the claim, in the prosecution of which they are to be employed, may be highly pernicious, and attended with such injurious effects on society, as to render it expedient to prohibit such a contract. Experience teaches *that such consequences usually attend such contracts. Hence the propriety of the restriction in question, while you permit the sale of the claim, or the purchase of the services, as distinct transactions.
We do not admit the conclusions of counsel, that-the consequences whieh these contracts may have on society can not enter into the argument — that they are only to be urged before the legislature, and can not be listened to or regarded by the court. This proposition at once begs the question, by supposing that there is no rule of law on the subject. Were this the case, we admit that the legislature alone could remedy the evil, as the court has no power to in-' troduee a new law, but when a rule of law does exist, applicable to the case, and sufficiently broad to embrace it, it is the province of the court to apply it. They are the tribunal to whom the appeal is to be made, and by whom it must be decided. The legislature may say what the law shall be — the court must say what it is.
But we are told, that to declare this contract not to be void on ' the face of it, does not include the consequence that all agreements of this nature are to be held obligatory. The proposition is admitted, and although counsel might wish to limit the exception to such contracts as come within the scope of the twelfth section above referred to, yet the court believe it to be much more extensive, and to embrace this case, whatever may have been its actual effect on the parties claiming the property in contest.
Judgment, therefore, must be entered for the defendant on the demurrer, which we consider clearly supported.
The stipulation in the contract, on which the opinion and judgment of the court are chiefly predicated, and to which they have directed it to be confined, is that which prevents Vattier from compromising and settling the matters in controversy, without the concurrence and consent of the other contracting parties. This point being considered sufficient, the court forbear to give an opinion on any other. As the provision, on the subject of cost, is not set out in the declaration, and the defendant has demurred without oyer, ■that feature in the contract has not been considered.