Page:Halsbury Laws of England v1 1907.pdf/276

 ;

Action.

54 Part Yin. Maintenance and Champerty. Effect of

champertous agreement.

give to the maintainer a share in the subject-matter or proceeds Unlike other kinds of maintenance, champerty is not thereof (5). excused by blood relationship (c). The Courts will not enforce, or act ujDon, an agreement or other instrument which amounts to maintenance or champerty and this rule extends to agreements or instruments which so " savour of " such offences as to be " mischievous," " against good policy and justice," and "tending to promote unnecessary litigaInstances of this rule fall, under two main heads: tion "(cOagreements to assist litigation and purchases of interests in litigation.

Agreements to assist litigation.

84. As to the first class, an agreement merely to give information to a person on terms of getting a share of any projDerty to be recovered by that person is legal (e) but if it be a term of the agreement that the giver of the information is himself to recover, or actively assist in recovering, the property, the agreement is unenforceable (/). fortiori an agreement to supply funds or legal assistance for litigation in return for a share in the proceeds is invalid (g). So too an agreement lo indemnify a person, willing to publish a libel, against the costs of an action in respect thereof, unenforceable!//). is An agreement by a solicitor to charge

A

nothing

for

Purchase of interest in litigation.

in

costs

unobjectionable

particular

a

has been held to be

action

(i).

85. As to the second class, there is nothing unlawful in the purchase of property which the purchaser can only enjoy by defeating existing adverse claims (A). In every case it is a question whether the purchaser's real object was to acquire an interest in the property, or merely to acquire a right to bring an action, either alone or jointly with the vendor; in the latter case his title is unenforceable (l). Thus the acquisition from a vendor of real property of the mere right to file a bill to set aside his conveyance

"Every champerty is maintenance" (2 Eoll. Abr. 119 r). IlutJey V. HuHei/ (1873), L. E. 8 Q. B. 112. But persons having common interests may agree to prosecute their claim, and to divide the proceeds in a (b) (c)

manner not

in accordance with their strict legal rights (Guj/ v. ChurchiU (1888), See, liowever, as to cases within '62 Hen. 8, c. 9, Cholmondeley V. Clinton (1821), 4 Bli. I. {d) ReyneU v. Sprtje (1852), 1 De G. M. & G. 660 Reesy. l)e Bernardy, [1896] Fischer v. Kamala Nakher (1860), 8 Moo. Ind. App. 170. 2 Ch. 437 ^'ee also Ram Coomar Coondoo v. Chunder Canto Moohrj'ee (1876), 2 App. Cas. 186. (e) Sprye v. Porter (1856), 7 E. & B. oS. Ridley v. (/) S])rye v. Porter, supra ; Stanley v. Jones (1831). 7 Bing. 369

40 Ch.

481).







And

the Court may go behind a written agreement, and draw its own conclusions as to the parties' intentions {Rees v. De liernardy, supra). Kai^le v. llop(g) James v. Kerr (1889), 40 Ch. D. 449, and cases there cited ivood (1861), 30 L. J. (c. P.) 217 Wood Strange v. Brevnav (1846), 15 Sim. 346 V. Downes (1811), 18 Ves. 120 Hilton v. Woods (1867), L. 11. 4 Eq. 432. (/?) Shackell v. Rosier (1836), 2 Bing. (n. c.) 634. (i) Jennings v. Johnson (1873), L. E. 8 C. P. 425. (k) 2 Eoll. Abr. 113 Y. B. 21 Edw. 3, 10, pi. 33; Dickinson v. Burrell (1866 llidley, supra.











L. E.

Eq. 337. 1 Y. & C. Ex. (?) Dickinson v. Burrell, supra; Prosser v. Edmonds (1835), 481; Harrington v. Long (1833), 2 My. & K. 590; Knig/d v. Boiuijer (1858), 2 De G. & .T. 421. 1