Belding v. Smythe

Field, J.

The two agreements, taken together, purport to assign to the defendant one half of the interest of the plaintiff in the estate of William Hale, and to authorize the defendant to prosecute the plaintiff’s claim against the estate and receive the sum recovered; with the provision that the plaintiff shall be saved harmless from all costs and charges if the defendant is unsuccessful in establishing the claim, and, if he is successful, that the amount of the cash expenses shall first be deducted from the sum recovered, and shall be retained by the defendant, and the remainder be divided equally between the parties. There is no express agreement on the part of the defendant that he will prosecute the claim, but this is clearly implied.

We cannot distinguish this agreement from an agreement that the defendant will prosecute the claim at his own expense and risk, unless he is successful; and, if successful, that his cash expenses shall be paid out of the sum recovered, and the remainder be equally divided. The conveyance of the one undivided half part was executed for the purpose of inducing the defendant to prosecute the plaintiff’s claim, and was a method of securing to the defendant the share of the property recovered which it was agreed he should have if successful. If this interest had been previously acquired for other purposes, a subsequent agreement for the prosecution of the claim upon the terms stated would not be champertous, because the defendant would have had a legitimate interest in the litigation. But the two instruments constitute plainly but one transaction, and show that the defendant procured evidence in support of contemplated litigation in which he had no interest, and then prosecuted it only for the share of the proceeds he might get out of it under an agreement made for that purpose with the plaintiff.

We think the agreements are champertous. Pub. Sts. c. 160, § 6. Ackert v. Barker, 131 Mass. 436. Williams v. Fowle, 132 *533 Mass. 385. Reynell v. Sprye, 1 DeG., M. & G. 660. Stanley v. Jones, 7 Bing. 369. Sprye v. Porter, 7 E. & B. 57. Hutley v. Hutley, L. R. 8 Q. B. 112.

The defendant in his brief contends that the plaintiff is not entitled to relief in equity, because, if the agreements are champertous, the parties are in pari delicto. No such contention appears in the defendant’s answer. The defendant is an attorney at law, and, in dealing in this manner with one whom he makes his client, the parties are not regarded as in pari delicto.

Decree for the plaintiff.