Bratton, J.
The bill in this case prays for the specific performance of a contract for the conveyance of certain real estate, made by the defendant with the plaintiff The parties to the contract were both heirs at law of one Eliza Angelí, whose last will and testament had been admitted to probate, and-an appeal taken from the probate thereof, was, at the time of making the contract, pending in this court and undetermined. It was, thereupon, agreed that the plaintiff, Martin, should carry oh and prosecute the appeal, and all proceedings which should be connected therewith, at his own proper cost and charges, and that the defendants, Clarke and others, in consideration thereof, should, upon the setting aside of said will, or other determination of the suit in favor of the heirs at law, convey and assure to the plaintiff one-half part of all his, the defendant’s, right, title and interest in the estate of the said Eliza Angelí at the time of her decease. The answer discloses that the plaintiff was, in making this contract, acting as the agent of one Rollin Mathewson, an attorney of this court, and that said Mathewson was not one of the heirs of the said Eliza Angelí, nor, at the time of making the contract, was he, in any wise, interested in the subject-matter of said appeal; and the answer claims that the said contract sought to be enforced was therefore champertous, illegal and void.
The question raised in the argument, upon the bill and answer, is, whether a sufficient defence is disclosed. The complainant insists that there is not; that the agreement was one required by the statute of frauds to be in writing, and, as writ
ten, it is a contract witb. the said Martin as principal, and inasmuch as both the parties had an interest in the matter in suit, the agreement is not open to any such objection as that it is champertous or illegal.
It is further agreed, that as it is not pretended by the respondent that the contract has been altered or varied by any other writing between the parties, it is not competent for him to prove that it was other or different from that which the writing shows, and that the rule which excludes parol evidence to contradict, add to, or vary that which is contained in a written instrument, will not permit the defendant to prove, by parol, that Martin was agent merely and not the principal, as the written contract purports. The rule referred to will exclude parol jDroof of that which is here set up in the answer. It does not extend to evidence offered to show that the contract was made for the furtherance of objects forbidden by law, either by statute, by the common law, or by the general policy of the law. 1 Greenl. Ev. § 248.
The making of the agreement is here admitted, and the parties to it and its terms are as the writing shows; but, nevertheless, it is said — and it is proposed to be proved — that it was made with the intent, on the part of the contracting party, to accomplish an illegal purpose, and as part of a scheme for that end, viz., to call in the aid of a party not before interested in the matter in suit, to carry on the suit at bis own costs and charges, for part of the subject in litigation. The rule excluding parol evidence will not prevent a court, either of law or of equity, from looking through all disguises in order to detect fraud or illegality, and from inquiring into the true nature of the transaction and the intent of the parties in this regard. The case of
Collins
v. Bayntum, cited by Greenleaf to this point, was a case at law, and the objection there was to a plea alleging that the bond sued was money advanced to compound the crime of perjury, and as the bond was for the payment of money only, which was legal, it was not competent to allege or prove the unlawful consideration, the unlawful purpose of its payment The answer of the court, by Wilmot, 0. J"., to this point, is by way of interrogatory :—
“ "What strange absurdity,” said he, “ would it be for the law to say that the contract is wicked and void, and in the same breath to say you shall not be permitted to plead that which shows it to be so ? It is a transaction to gild over and conceal the truth, and whenever courts of law see such attempts, they will brush away the disguise and show the true nature of the transaction.”
Another case is that of
Paxton
v.
Popham,
9 East. 416, where the plea stated facts inconsistent with, and contradictory to, the condition of the bond, it was held, that unless this were permitted, bonds would be made to cover any species of illegality and wickedness. The same principle which allows the illegality to be alleged, allows the allegation to be proved, if need be, by parol evidence.
Eor anything that appears to us, it is competent for the respondent to prove what is alleged in this answer, that the contract was made in fact in the name of Martin, but for the benefit of Mathewson, and with the intent the estate agreed to be conveyed should vest in Mathewson, who had no interest in the suit aside from the contract, and to be a consideration to him for carrying on, at his own sole cost and charges, the suit then pending, to its final termination.
It is quite clear that if they succeed in proving this, they will have proved a transaction champertous in its nature and' — if the law of chanxperty be in force here — illegal and void.
It is said, however, and insisted, that no principle of public policy is violated by enforcing this contract, and that there is no law against champerty in force in this State. It is urged, in support of this position, that there is no adjudication here, that any such law exists that champerty is unlawful.
The reply of Lord Kenyon, to a like suggestion, in a case before him, might account for the absence of any solemn determination in this case as well as in the one before him, viz., “ that the
nisi prizes
determinations were thought too clear to be questioned.” There are, however, in our own reports two cases in which the inquiry was, whether the contract in question was champertous, and, for that reason, void. The fact that such question was raised and discussed implies that it was deemed, by
the counsel and the court, a material one, which could not be,' if being champertous it were not illegal. Neither case, however, holds expressly that champerty would avoid' the contract.. The fact of champerty was not found.
It is argued further, that it could be an offence here only by force of section 1 of chapter 219 of the Eevised Statutes, which provides that “ every act and omission which is an offence at common law, and for which no punishment is prescribed by this title, may be prosecuted and punished as an offence at common 'law,” and that champerty never was an offence at common law, and so is not within that section. The argument assumes that it is necessary tp maintain that this was an offence by the ancient common law of England. If it were necessary to establish this, that champerty was held to be illegal and punishable by the ancient common law, the standard authorities would seem to render it entirely clear that it was so from the earliest times. Lord Coke, commenting upon the Statute of Westminster L, c. 25, the earliest English statute upon the subject, says it was against those •maxima of the common law, viz., “
culpa estse immiscere rei se non
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Bratton, J.
The bill in this case prays for the specific performance of a contract for the conveyance of certain real estate, made by the defendant with the plaintiff The parties to the contract were both heirs at law of one Eliza Angelí, whose last will and testament had been admitted to probate, and-an appeal taken from the probate thereof, was, at the time of making the contract, pending in this court and undetermined. It was, thereupon, agreed that the plaintiff, Martin, should carry oh and prosecute the appeal, and all proceedings which should be connected therewith, at his own proper cost and charges, and that the defendants, Clarke and others, in consideration thereof, should, upon the setting aside of said will, or other determination of the suit in favor of the heirs at law, convey and assure to the plaintiff one-half part of all his, the defendant’s, right, title and interest in the estate of the said Eliza Angelí at the time of her decease. The answer discloses that the plaintiff was, in making this contract, acting as the agent of one Rollin Mathewson, an attorney of this court, and that said Mathewson was not one of the heirs of the said Eliza Angelí, nor, at the time of making the contract, was he, in any wise, interested in the subject-matter of said appeal; and the answer claims that the said contract sought to be enforced was therefore champertous, illegal and void.
The question raised in the argument, upon the bill and answer, is, whether a sufficient defence is disclosed. The complainant insists that there is not; that the agreement was one required by the statute of frauds to be in writing, and, as writ
ten, it is a contract witb. the said Martin as principal, and inasmuch as both the parties had an interest in the matter in suit, the agreement is not open to any such objection as that it is champertous or illegal.
It is further agreed, that as it is not pretended by the respondent that the contract has been altered or varied by any other writing between the parties, it is not competent for him to prove that it was other or different from that which the writing shows, and that the rule which excludes parol evidence to contradict, add to, or vary that which is contained in a written instrument, will not permit the defendant to prove, by parol, that Martin was agent merely and not the principal, as the written contract purports. The rule referred to will exclude parol jDroof of that which is here set up in the answer. It does not extend to evidence offered to show that the contract was made for the furtherance of objects forbidden by law, either by statute, by the common law, or by the general policy of the law. 1 Greenl. Ev. § 248.
The making of the agreement is here admitted, and the parties to it and its terms are as the writing shows; but, nevertheless, it is said — and it is proposed to be proved — that it was made with the intent, on the part of the contracting party, to accomplish an illegal purpose, and as part of a scheme for that end, viz., to call in the aid of a party not before interested in the matter in suit, to carry on the suit at bis own costs and charges, for part of the subject in litigation. The rule excluding parol evidence will not prevent a court, either of law or of equity, from looking through all disguises in order to detect fraud or illegality, and from inquiring into the true nature of the transaction and the intent of the parties in this regard. The case of
Collins
v. Bayntum, cited by Greenleaf to this point, was a case at law, and the objection there was to a plea alleging that the bond sued was money advanced to compound the crime of perjury, and as the bond was for the payment of money only, which was legal, it was not competent to allege or prove the unlawful consideration, the unlawful purpose of its payment The answer of the court, by Wilmot, 0. J"., to this point, is by way of interrogatory :—
“ "What strange absurdity,” said he, “ would it be for the law to say that the contract is wicked and void, and in the same breath to say you shall not be permitted to plead that which shows it to be so ? It is a transaction to gild over and conceal the truth, and whenever courts of law see such attempts, they will brush away the disguise and show the true nature of the transaction.”
Another case is that of
Paxton
v.
Popham,
9 East. 416, where the plea stated facts inconsistent with, and contradictory to, the condition of the bond, it was held, that unless this were permitted, bonds would be made to cover any species of illegality and wickedness. The same principle which allows the illegality to be alleged, allows the allegation to be proved, if need be, by parol evidence.
Eor anything that appears to us, it is competent for the respondent to prove what is alleged in this answer, that the contract was made in fact in the name of Martin, but for the benefit of Mathewson, and with the intent the estate agreed to be conveyed should vest in Mathewson, who had no interest in the suit aside from the contract, and to be a consideration to him for carrying on, at his own sole cost and charges, the suit then pending, to its final termination.
It is quite clear that if they succeed in proving this, they will have proved a transaction champertous in its nature and' — if the law of chanxperty be in force here — illegal and void.
It is said, however, and insisted, that no principle of public policy is violated by enforcing this contract, and that there is no law against champerty in force in this State. It is urged, in support of this position, that there is no adjudication here, that any such law exists that champerty is unlawful.
The reply of Lord Kenyon, to a like suggestion, in a case before him, might account for the absence of any solemn determination in this case as well as in the one before him, viz., “ that the
nisi prizes
determinations were thought too clear to be questioned.” There are, however, in our own reports two cases in which the inquiry was, whether the contract in question was champertous, and, for that reason, void. The fact that such question was raised and discussed implies that it was deemed, by
the counsel and the court, a material one, which could not be,' if being champertous it were not illegal. Neither case, however, holds expressly that champerty would avoid' the contract.. The fact of champerty was not found.
It is argued further, that it could be an offence here only by force of section 1 of chapter 219 of the Eevised Statutes, which provides that “ every act and omission which is an offence at common law, and for which no punishment is prescribed by this title, may be prosecuted and punished as an offence at common 'law,” and that champerty never was an offence at common law, and so is not within that section. The argument assumes that it is necessary tp maintain that this was an offence by the ancient common law of England. If it were necessary to establish this, that champerty was held to be illegal and punishable by the ancient common law, the standard authorities would seem to render it entirely clear that it was so from the earliest times. Lord Coke, commenting upon the Statute of Westminster L, c. 25, the earliest English statute upon the subject, says it was against those •maxima of the common law, viz., “
culpa estse immiscere rei se non
pertionenti,” and this other,
“pendente lite nihil
innovetur.” He cites Bracton, who wrote before the statute, to show that it was one of the articles inquirable by the justices in Eyre before the reign of Edward I., whether suits had been stirred up by certain officers, by which justice and truth might be suppressed or delayed. He also cites Eleta for the same purpose, that suits had been thus prosecuted, and he reasons thus, that it appears that the end of maintenance is to suppress truth and justice, or at least to work delay, and is therefore
malum in se,
and against the common law, and if maintenance
in genere
be so, much more is that worst species of it called champerty. This view is supported by every law writer since the days of Lord Coke and the reign of James I. Blackstone (vol. 4, p. 135) characterizes the offence as one against public justice, as it keeps alive strife and contention and perverts the remedial process of the law into an engine of oppression. This is repeated by Judge Story (Equity Juris. § 1048), who says it is an offence as well by the common law as by statute. Lord Eldon says it is against the general princi
pie of policy. In
Willer
v.
Duke of
Portland,
3 Ves.
494, Lord Roslyn said it is laid down as a fundamental authority, that maintenance is not
malum
prohibitum, but
malum in se,
and that all the law books state it to be not upon the statute. Tindal, C. J., in a late case of
Stanley
v. Jones, 7 Bing. 369, considered
the principle upon which it rests as not confined^ to the common law of
Dngland,
but that champerty was
considered,
in the earliest times and in all
countries,
as an offence of great mischief to the public.
Chancellor Kent, in his Commentaries, holds, also — -using his own language — that “the statutes of champerty are founded on a principle common to the law of all well governed countries, that no encouragement shall be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce.” Thén it is suggested by Lord Coke that there was reason for passing the statute against this common law offence, “that the statute gives a greater punishment than was by the common law; that the first statutes were directed against the king’s ministers in his court, because they were in place to do more mischief by subverting justice and truth than others.” In the Statute, 28 Edw. I. c. 11, it is provided that that statute shall not restrain one from having advice and direction in law from those learned in the law, “
consaile des countours et des sages
gents,” yet if a sergea-nt-at-law, apprentice or attorney, take a feoffment having the plea to maintain, though it be
pro suo
dando, in lieu of his fees, yet it is champerty, for this is to become party, and is in no sort allowed.” And it is not allowed for-the reason given for the Statute of Westminster I. It was the worst species of maintenance. It was against those who, by their place, might' do most mischief in perverting the law to an engine of oppression, and suppressing justice and truth.
And that the place of an attorney is regarded in this light may be seen from the case of
Welles
v.
Middletown,
1 Cox, 125, where it was held, as well settled, that an attorney cannot take a gift while the client is in his hands, not even instead of his bill; and the chancellor said there would be no bounds to the crushing influence of the power of an attorney, who has the affairs of the
client in Ms hands, if it were not so; and, upon general principles of policy, a just gift will be set aside.
These statutes against champerty did not repeal the common law prohibition, because a statute merely in affirmance of the common law does not repeal it. It is only where a statute enacts what is inconsistent with the rule of law before existing that it operates to repeal, whether the prior rule were one of the common law or prescribed by statute. For the same reason, the code of laws made in 1647, under the patent of 1643-4, containing a prohibition of this offence, did not alter the common law here, more than the statutes of Edward I. did in England. So the common law on this subject never was repealed.
A colonial statute passed soon after the charter of 1663 provided that any person convicted of cham|oerty should be punished by one year’s imprisonment, and make fine to the colony as the judges should award. This act does not define the offence; it prescribes the punishment only, and we are left to inquire if that common law which the colonists brought with them for the definition of the offence which this act implies was existing. This act continued in force down to 1844, substantially as it was originally enacted.
In 1749-50, another act was passed by the colonial legislature, in order to avoid some question which had arisen, which declared that (among other statutes of England) all statutes that are against criminal offenders, so far as they are descriptive of the crime, and where the law of the colony hath not described and enjoined the punishment, then that part of the statute that relates to the punishment also “ shall be in force until the general assembly order otherwise.” So this legislation continued down to the revision of the law in 1844, the act prescribing the punishment of champerty as well as the act declaring the English statute descriptive of that offence continuing in force here.
In the revision of 1844, the act prescribing the punishment was repealed, and, in the sixth section of the act establishing that digest, it was provided that
“
when no provision is made either at common law or by the statutes aforesaid [the Eevised Statutes], such statutes as were introduced before the Declaration of
Independence and as have been continued in force, shall be considered as part of the common law, and remain in force until the general assembly provide therefor.” So the offence is recognized by these acts as still existing.
Suppose, however, that champerty were not an offence at the common law, and were first made illegal by the Statute of Westminster I., the answer to the question, if it be now an offence here ? must still be the same. If there had been no legislation here upon the subject, the colonists here, upon their emigration, brought with them, to this country, the law of England as it then existed, as modified by statutes, so far as it was applicable to their condition and circumstances here, and this statute, as part of that law, became a part of the common law of this country.
Whether we look, therefore, at the ancient common law, to the English statutes upon the subject, or to our own legislation, the conclusion must be the same, — that champerty is an offence against the law. Being such, it must avoid every contract into which it enters.