Thallhimer v. Brinckerhoff

3 Cow. 623

• Court: New York Supreme Court
• Decided: April 15, 1824
• Status: Published

Opinion

The Chancellor.

Champerty, maintenance, and barratry were defined as offences, in very early stages of the English law. These practices seem to have been then common in England ; and they were denounced not only as sins very heinous in themselves, and highly injurious to the peace of society, but also as offences which actually interrupted the course of public justice. The excitement of suits is an evil, when suits are unjust; but when right is withheld, and the object of a suit is just, to promote the suit, is to promote justice. That a resort to the public tribunals for justice, should produce injustice, can be true, only where the administration of justice is weak or corrupt, or where the laws are very imperfect. Where the administration of justice is firm, pure, and equal to all, and where the laws give adequate redress for groundless suits, it is not easy to conceive, that mischief can arise from opening the courts of justice to all suitors, or from contracts by which the fruits of a suit may be divided between him who has the right of action, and him who has contributed advice, expense or exertion, to institute the suit, or prosecute it to effect. The right of litigating, may be abused ; and proper remedies for groundless and vexatious litigation, must exist: but the remedies for the abuse of this right, should be such as not to impair the 111 ci''iuuulS me auu ui me suilui uuin me vuui uui. ™ redress following the decision of justice, upon the merits of the cause. free use of the right itself. As the justice, or injustice of the claim can not be known before the termination of the cause,, the checks upon unjust litigation, must in general, consist, ylAf 1 r\ AWnlt^ 1 MA* iL A A 1 4- AM 4. 1a A -1 tA.. /.1 Í b a aaii «f.n knr i n

Origin, pro-|es of the law ^hamper^T ** maintenance audbarratr3r*

Tke’&vM few*

The Roman law, by its provisions for preventing groundless and vexatious suits, required, that the plaintiff should take an oath, that the suit was not commenced from malice, and that he believed his cause to be legal and just. The defendant was required to swear, that in his belief, the plaintiff had no just claim. The advocates on both sides, were required to take similar oaths. If the plaintiff failed in his suit, he was fined in a sum, which was sometimes a tenth part of the demand; and in cases of great malice and vexation, the plaintiff was farther punished by a decree of ignominy. Inst, book 4. tit. 16. Code, book 2. tit. 59. Dig. book 5. tit. 1. 79. Inst, book 4. tit. 1—33, Huber. Praslect. 457. 1478. Wood’s Civil Law, 341.

The English doctrine of maintenance arose from causey peculiar to the state of the society, in which it was established. The great reason for the suppression of champerty and maintenance, was an apprehension, that justice itself, was endangered by these practices. Blackstone, 4 Comm. 135, speaks of this offence, as perverting the process of law. into an engine of oppression. In the case of Slywright and Page, 1 Leon. 167, it was said by the whole court of common pleas, that the meaning of the statute of the 32 H. 8, concerning maintenance, was “ to repress the practices “ of many who when they thought they had title or right “ to any land, for the furtherance of their pretended right, “ conveyed their interest in some part thereof to great persons, and with their countenance, did oppress the possess- “ ors.’5 The power of great men, to whom rights of action were transferred, in order to obtain support and favor in süits brought to assert those rights; the confederacies which were thus formed ; and the oppression which followed from the influence of great men, in such cases, are themes of complaint, in the early books of the English.law. While the power of nobles and great men was felt in the administration of justice, these practices seem to have produced real and great evils. In that state of things, instead of invigorating and purifying the administration of justice, as the direct remedy for such evils, the laws concerning champerty and maintenance were established, as penal regulations intended to operate upon the parties to these transactions.

^alba^ny, Thullhimer gr¡nClieiliolt;

In modern times, and since England has enjoyed a pure and firm administration of justice, these evils are little felt; gtnd champerty and maintenance are now seldom mentioned, as occurring in fact, or as producing mischief in that country. The statutes for the limitation of actions, the statute of

frauds, the extension of the action for malicious prosecutions, and the costs given against unsuccessful parties, have all taken place since the law of maintenance was established; and all these alterations have contributed to prevent or punish groundless and vexatious litigation.

It was a principle of the common law, that a right of action could not be transferred by him who had the right, to another. When we seek the reason of this rule, we find it . . .... m the motive already mentioned, an apprehension that justice would fail, and oppression would follow, if rights of action might be assigned. “ Nothing,” says Coke, Co. Lit, 114. a. ; “ nothing in action, entry, or reentry, can be “granted over ; for so, under color thereof, pretended ti- “ ties might be granted to great men, whereby right might “ be trodden down, and the weak oppressed.” Feeble, partial, and corrupt, must have been the administration of justice, where such a reason could have force. In early times, this rule concerning rights of action was rigorously enforced. As the entire right of action could not be assigned, so no part of it could be transferred, and no man could purchase another’s right to a suit, either in whole, or in part. Hence the doctrine of maintenance which prohibits contracts for a part of the thing in demand, was adopted as an auxiliary regulation, to enforce the general principle which prohibited the transfer of all rights of action. But the rule of the common law, that rights of action can not be assigned, has in piodern times been reversed ; the apprehension, that justice would be trodden down, if property in action should be transferred, is no longer entertained ; and the ancient rule now serves only to give form to some legal proceedings. In courts of equity, this rule was never followed ; and those courts have always considered and treated the rule as . J unjust, and have supported assignments of rights of action. Experience has fully shewn, not only, that no evil.results from the assignment of rights of action, but that the public good is greatly promoted by the free commerce and circu. lation of property in action, as well as of property in pos-, session

By the com-right 0f action ®ould not be-transferred;

But this rulo time™b™°n i™' versed.

In the courts of equity, it 70™er &1'

And though a°W common law, as to an entire right of action, yet a lefrausferretf

The general law, boih in England and here, now is, that rights of action may be transferred ; and as the laws concerning maintenance are still in force, the present state of 1 the law is, that while an entire right of action may be transferre<* *° 9 purchaser, with complete effect, a contract to transfer a part of a right of action, is void. The primary rale forbidding the assignment of a right of action, has ceased ; but the auxiliary sanction concerning the assignment of a part of such a right, remains in force. The English judges feeling that the original reasons for the law of champerty and maintenance, had ceased, have gradually mitigated that law, by interpretations and exceptions $ and the present state of English opinion on this subject, may be seen in 4 D. & Ef 340, 341 ; where Buller justice, expresses himself in terms which do not disguise his contempt for the whole doctrine of maintenance.

In many of the ^laws^against champeríy, &c. are pot m force.

In many of the states of this union, these laws are not ™ f°rce ; and the want of them, is said to be no inconvenience.

These observations are made to show, that in examining ° the English law, and English authorities concerning champerty and maintenance, we ipust, in order to ascertain the sense and extent of their doctrines, bear in mind the state of society which produced them, the evils for which they were intended to afford a remedy, and the different state of things, to which they are now applicable.. It is only by this recurrence to history, that we can trace the true reasons of the English law ; the canses of the horror with which the maintenance of suits was viewed in early times ; the decline and fall of the rule of the common law, that things in action were not vendible ; and the different views, which at different times have had influence upon the judicial expositions of the law of maintenance, in England.

Our statute concerning champerty and maintenance, is a compilation of the several English statutes relating to the same subjects ; and it declares certain contracts void, This statute throughout, makes or supposes, a distinction, which before prevailed in the rules of the common law, between maintenance which is innocent, and that which is unlawful. To maintain the suit of another, is unlawful, unless the person maintaining, has some interest in the subject of the suit, or unless he is connected with the suitor, in some social relation. These are the exeptions to a general rule ; and they are exceptions which rest upon the strongest ground of reason, as well as the support of authority.

Where the person promoting the suit of another, has any interest whatever in the thing demanded, distinct from that which he may acquire by an agreement with the suitor, he is in effect, also a suitor, according to the nature and extent of his interest. To deny to such a person the benefit which . J r he might receive from a suit conducted mainly or partly, for the benefit of another, would be to close the temple of justice against all persons not parties to the suit, and yet having interests in the subject of litigation, which may be affected by the determination of the cause. It is accordingly a principle, that any interest whatever in the subject of the suit, is suEcient to exempt him who gives aid to the suitor, from the charge of illegal maintenance. Whether this interest is great or small, vested or contingent, certain or uncertain, it affords a just reason to him who has such an interest, to participate in the suit of another, who also has or . claims, some right to the same subject. Bac. Abr- tit. Maintenance, letter B., and the several authorities there cited.

our statute piiation from gtatutes^onthe

supposes a dishnctio“ throughout, between inno^M^maintenance.

the suit0f a-unless the ’person terest in the suiter is^on-n,ected. ^th the suitor in-some social

such, interest he is, ^if a suitor™*

An3 whelhev the interest smaU^vested or contingent, certain or uncertain, he maymamta™'

Where there is consanguinity or aEnity between the suitor and him who gives aid to the suit, the voice of nature, ° ’ ’ and the language of the law equally declare, that such assislance is not unlawful maintenance. The relation of landlord and tenant, that of master and servant, acts of charity to the poor, and the exercise of the legal profession, are all cases in which it is not unlawful to give aid in the conduct of suits before the courts of justice.

gQ where there. con" sanguinity, or a$mty- between the suitor and him "ivho aids the suit, the assistance is lawful.

The laws against champerty, &c". Were intended to prevent the 'interference of strangers, having no pretence of right in the' subject of the suit, and standing in no relation of duty to' the' suitor.

The same' rules and exceptions apply both to champerty and maintenance, the former being maintenance in a particular form.

Upon all such Cases* these laws were never intended to operate. They were intended to prevent the interference of strangers having no pretence of right in the subject of the suit, and standing in no relation of duty to the suitor. They were intended to prevent traffic in doubtful claims, and to operate upon buyers of pretended rights, who had no relation to the suitor or the subject, otherwise than as purchasers of the profits of litigation.

It has been urged, that champerty and maintenance are distinct offences ; and that champerty is illegal, in many ca^ ses, in which maintenance in other modes* would be lawful. If principles are considered, it seems to be of little moment* whether he who maintains the suit of another, receives his reward from the subject of the suit, or from any other property of the suitor. Champerty is one species of maintenance ; but the authorities do not declare contracts for a part of the thing in demand, universally unlawful. The distinction made by the books, between interference which is illegal, and that which is lawful, consists, in the rule, and the' exceptions already stated ; and where maintenance is lawful, as in the case of interest in the subject, or relation1 to the suitor, a contract to divide the subject of the suit* which is maintenance in a particular form, is also legal.

The husband may by’possibility be heir to. the suitor, of the land in maintain ”the action of the agreement11 to have part oi the land, in consideration ten anee m*in"

In this case the wife of Thallhimer was the sister of TelIer i and this relation, recited in the contract, evidently led Thallhimer and Teller to the contract itself. Thallhimer did not obtrude himself into the concerns of a stranger ; ^ut agreed to give aid to his relative* as he might justifiably do. He was not the promoter of litigation, in which he had no concern. His wife might inherit Teller’s lands ; and this reason alone, exempts the contract before us, from r . ’ the imputation of champerty, or illegal main tenante. It is immaterial to this question, whether the contingencies which must occur, before Teller’s sister could inherit, were such as to render that event probable or not. She might become the owner of these lands, as the heir of Teller ; and this potential interest, was a sufficient reason, that her husband should join in measures to recover the lands.

The charge of champerty or maintenance, being the only objection made to this agreement, and that objection not being applicable to this case, the agreement is valid. The action now brought against Brinckerhoff, is assumpsit for money received by him for the use of Thallhimer. The contract not transferring any right in the lands themselves, to Thallhimer, the legal title remained in Teller, who had power to bring suits, to compromise the claim, and to release the legal title. Teller did compromise the claim and did release the legal title to the possessors of the land, for a sum of money ; this was done by Brinckerhoff acting under a power from Teller, and the money was received by Brinckerhoff. After these facts had occurred, there never could be a conveyance of any right in the lands, from Teller to Thallhimer; and the agreement could have effect, only by considering the money received, as substituted for the land, in respect to the rights of Thallhimer under the contract. This construction gives effect to the contract; and must be adopted as the sense of the contract itself, and as a necessary consequence from (he events succeeding the contract, which rendered any conveyance of a right in the lands impossible. The compromise was valid, both in respect to Teller, and the possessors of the land ; and if this agreement nbw has any effect, it must operate upon the money received, as it might have operated upon the land, had the land itself been specifically recovered. If this contract could be defeated, by acts of Teller and Brinckerhoff, in which Thallhimer had no part, and over which he had no control, the most flagrant injustice would be done to Thallhimer. The sense of the contract evidently is, that in the event of success, Thallhimer shall have one fourth part of the property: whether the fruits of the claim should be realized in one species of property, or another.

The action for money had and received is proper in this case ;

rectly brought in the name of Thallhimer alone.

The rights of Thallhimer in this suit, arise from his agreement with Teller, from the act of Teller in authorising the compromise, and from the acts of Brinckerhoff, in commenc'ng the actions of ejectment, in making {he compromise and in receiving the money. In commencing the actions of ejectment, Brinckerhoff acted as the attorney of both Thallhimer and Teller. In making the compromise, , „ _ „ . , he acted as the agent of Teller, m respect to the possessors of the land ; for Teller having the legal title, he alone could give a power to compromise. But as Brinckerhoff had full knowledge of the rights of Thallhimer under the agreement, he may be justly regarded, in making the compromise, as the agent ofboth Thallhimer and Teller, in respect to their rights, and according to their respective interests. In these circumstances, the action for money received for the plaintiff, is entirely proper ; the use of that form being, to allow the introduction of the express contract, and all the acts of the parties; and also to give effect to any tacit promise which law and justice may infer from all the facts of the case. The agreement determines, that Thallimer’s share of the money, is one fourth part; and Brinckerhoff has not paid, as he ought not to have paid, this fourth part to Teller. This share is money belonging to Thallhimer, and remaining in the hands of Brinckerhoff. Thus, the objections made to the form of this suit, appear to be destitute of weight.

My opinion is, that the judgment of the supreme court should be reversed, and that the cause should b§ again sent to trial.

The Court being unanimously of this opinion, it was, thereupon, ordered, adjudged and decreed, that the judgment of the Supreme Court, in this cause, be reversed, with costs in error to be taxed for the plaintiff in error; and that the transcript be remitted to the said Supreme Court; and that the said Court award a venire facias de novo.