An action of detinue was pending in the Superior Court of Law of Rockingham, in the name of John C. Mingus, trustee of A. D. Jones, against one Robert Strong, for the recovery of several slaves. During the pendency of this suit, Robert Strong and his son William R. Strong, the defendant, entered into a contract in writing, of which the following is a copy:

"Memorandum of an agreement made and entered into 25 May, 1848, between Robert Strong on the one part and William R. Strong of the other part, all of the county of Rockingham and State of North Carolina, to wit: That, whereas, there is now pending a certain suit in the Superior Court of Rockingham, in which A. D. Jones and others are plaintiffs and the said Robert Strong defendant, for the recovery of the following negroes, namely (seven in number), with their increase, and the said Robert Strong, feeling his inability from age and bodily infirmities of paying the attention necessary to defend the said suit successfully, agrees to give the said William R. Strong, for and in consideration of his services in personally attending to the said suit, assisting to make a successful defense, and for the further consideration of five dollars, to him in hand paid, the receipt whereof is hereby acknowledged, one-half of said negroes with their increase, after paying all expenses of said suit; said William R. Strong agrees (101) to pay strict attention to said suit to a successful termination. In witness whereof, the above mentioned parties have hereunto set their hands and affixed their seals, this day and date above written.

ROBERT STRONG. [SEAL.] W. R. STRONG. [SEAL.]"

On the same day, very shortly after the execution of this instrument, Robert Strong made and published his last will and testament, and died a short time afterwards. The will was duly proved and recorded. By his will Robert Strong gives to William R. Strong a tract of land of 327 acres, all his furniture, plantation tools, the crop that might be growing at his death, and two negroes, Anderson and Tempe. After giving his daughter Janet Roberts a legacy of fifty dollars, and to his daughter, the plaintiff Mary, a negro girl named Caroline, he directs that the negroes Tab, etc. (fourteen in number, including by name the seven mentioned in the contract which has been recited), with their increase, and all the residue of this estate, shall be should by his executors; that his debts be collected, and after paying the debts owing by him and the pecuniary legacy of fifty dollars to Mrs. Roberts, the proceeds are to be divided equally between plaintiff Mary Barnes and defendant William R. Strong; the latter, with one Burton, were appointed executors of this will, but only the defendant qualified, the other having renounced. The action of detinue (Mingus v. Strong) shortly afterwards, and about the time of Robert Strong's death, was decided against the defendant in the Superior Court of Rockingham; but before execution could be had against him William R. Strong, as executor, filed a bill for an injunction, which was brought to this Court and on the hearing of the cause was made perpetual, by which the contest with Mingus was finally decided in favor of William R. Strong as executor. (102)

The bill alleges that all the property of the testator (excepting two slaves that had been sold in his lifetime), including the slaves mentioned in the agreement with him, as well as the increase, excepting the girl Carolina, which was delivered to the plaintiff, and all the other property of the testator, is held by the defendant as executor; that the negroes have been hired out and two of them sold by the executor, and the money, as well for those sold by testator as by himself, collected by him. The plaintiff insists that the agreement entered into between Robert Strong and has son William R. Strong is against the policy of the law of North Carolina, and void for Champerty; and that they are, by the will of their father, entitled to one-half of the residue of the estate, after paying the debts and the pecuniary and specific legacies.

The prayer of the bill is for an account, and that one-half of the residue of the personal estate, after satisfying the legacies to Janet Roberts, may be paid to the plaintiffs, and that the slaves not sold may be sold and the money divided, or the slaves themselves divided equally between plaintiffs and defendant William; also for general relief.

The answer sets forth more distinctly the reasons and considerations upon which the agreement in question was made, the great trouble and expense in defending the lawsuit for his father and the diligence with which he protected the interests of the estate, and he now insists that these facts, with the additional fact that he is the son of Robert Strong, the other contracting party, takes his case out of the ruler of law avoiding contracts for champerty. There was much other matter in both the bill and answer, but sufficient is set forth to present the questions upon which the opinion of the Court is based.

There was replication and proofs taken as to the points not involved in the opinion. Cause set for hearing and removed to this Court.

BATTLE, J.

The pleadings in this cause present for consideration a question which has not hitherto, so far as we know, been decided in this State. The question is whether a contract between a father and son, made during the pendency of a suit against the father, where the son agrees to defend the suit for the father, in consideration of receiving a part of the property in controversy in case of success, is void as coming within the prohibition of the common law against maintenance and champerty. We have given to the subject that attention to which its importance, as well as its novelty, requires, and our reflections have brought us to the conclusion that the contract is against the settled policy of the law, and therefore cannot be upheld. Sergeant Hawkins, whose definition of these offenses is adopted, mainly, by all the (104) later writers on the subject, says that "maintenance is commonly taken in an ill-sense and in general seemeth to signify an unlawful taking in hand, or upholding of quarrels to sides, to the disturbance or hindrance of common right." Maintenance in a court of justice is "where one officiously intermeddles in a suit depending in any such court which no way belongs to him by assisting either party with money, or otherwise, in the prosecution or defense of any such suit." 1 Hawk. P. C., ch. 27, Tit. Maintenance. "Champerty is the unlawful maintenance of a suit in consideration of some bargain to have part of the thing in dispute or some profit out of it." Ibid., Tit. Champerty. These offenses are of the same nature, the latter being an aggravated species of the former, and are both punishable at common law, as well as forbidden by various statutes. 1 Hawk. P. C., Title Maintenance, sec. 38; Champerty, sec. 1; Roscoe's Cr. Ev., Title Maintenance, etc.; 4 Black. Com., 135.

Champerty being an offense thus prohibited at common law, as well as by statute, any contract or bargain into which it enters as one of the elements must necessarily be void, as being founded upon an illegal consideration. Accordingly, we find that in England the Courts, both of Law and Equity, have refused to give effect to such contracts, and the latter courts have even given relief against instruments which they said savored of champerty. Thus at law it was held that an agreement to communicate such information as should enable a party to recover a sum of money by action and to exert influence for procuring evidence to substantiate the claim, upon condition of receiving a portion of the sum recovered, was illegal. Stanley v. Jones, 7 Bing., 369 (20 Eng. C. L., 165). So in Equity, where a bill was filed to set aside an agreement made by a seaman for the sale of his chance of prize money, that eminent Judge, Sir William Grant, Master of the Rolls, expressed the opinion that the agreement was void from the beginning as (105) amounting to champerty, viz., the unlawful maintenance of a suit in consideration of a bargain for a part of the thing or some profit out of it. Stephens v. Bagwell, 15 Ves., Jr., 139. In a later case, before Lord Chancellor Eldon, certain beneficial contracts and conveyances obtained by an attorney from his client during their relation as such and connected with the subject of the suit, being also liable to the charge of champerty, were decreed to stand as a security only for what was actually due. Wood v. Downes, 18 Ves., Jr., 76. Lord Eldon, in delivering his opinion, referred to the case of Strachan v. Browden, 1 Eden., 30, decided by Lord Nottingham, in which he set aside a bond given to secure double the amount subscribed to assist a poor man to recover an estate upon condition to have nothing if the suit failed, the Chancellor observing that though not strictly champerty it was very near it.

In some of our sister States champerty and maintenance have been decided to be offenses at common law, and contracts infected with them have been declared illegal and void. Burt v. Place, 6 Cowen, 431, was a case where an agreement to aid in defending a suit, made with one who was not licensed as attorney or counsel, was adjudged illegal and void for maintenance, that being both malum in se and prohibited by statute in New York. Thurston v. Percival was decided in Massachusetts. At the trial it appeared that the plaintiff, who lived in that State, had been employed as an attorney and counselor by the defendant to aid him in recovering a large sum of money in a suit which was prosecuted in the State of New York. After an expensive litigation the defendant recovered a judgment for $29,734, which was satisfied by a compromise by which he received $20,000. The plaintiff was constantly engaged in forwarding the suit, procuring evidence and (106) corresponding with the defendant's counsel in New York, and he made several journeys to New York to consult with the defendant's counsel there and to attend to the argument of the case, but he did not act as an advocate, not being allowed to do so by the laws of that State. The plaintiff produced in evidence a written agreement made in Massachusetts, by virtue of which he was to received, for all his services above described, ten per cent upon the sum which should be recovered. This was objected to as being unlawful, and was rejected. The Court held that though the plaintiff might recover, upon a quantum meruit, for his services before the agreement was entered into, yet the agreement itself was unlawful; that it came within the description of champerty, which all the ablest writers on criminal law declared to be an offense at common law; and that thought it had reference to a suit in the State of New York, the presumption was that it was against the law of that State, in the absence of any proof to the contrary. 1 Pick., 415. This case was referred to with approbation in the subsequent one of Lathrop v. Bank., 9 Metcalf, 489, where it was held that an agreement between the plaintiff and defendant that the plaintiff should prosecute and manage the defendant's suits at law as agent, and receive for his services a certain per cent upon the amount that might be recovered, and that if nothing was recovered his expenses only should be paid, amounted to champerty, and was so far illegal and void that the plaintiff, after obtaining judgment for the defendant, could not maintain an action on it. In delivering their opinion, the Court say: "It was suggested in the argument that the facts here shown do not bring the case strictly within the definition of champerty, as the plaintiff was not to conduct the suit wholly at his expense, but was, in the event of a failure to sustain the action, to be remunerated for his actual expenses. It is true (107) that some of the elementary books, in defining champerty, say that the champertor is to carry on the suit at his own expense, as 4 Black. Com., 135; Chitt. Con. (5th Am. Ed.), 675. Other books of equal authority omit this part of the definition, as 1 Hawkins, ch. 27, Tit. Champerty; Co. Litt., 368-b." See further on this subject, 2 Story's Eq. Jur., secs. 1048 and 1049, and the cases referred to in the notes.

From the brief review of the leading cases and authorities on this subject it manifestly appears that champerty is an offense at common law, independently of any statute, not only in England, but in some, if not all, the States of this Union, which derive their unwritten law from the same source. It appears further that every contract or agreement made, into which champerty enters as a consideration, is illegal and void. Hence we conclude that the same doctrine prevails in this State, where it is expressly enacted "that all such parts of the common law as were heretofore in force and use in this State, or so much of the said common law as is not destructive of, or repugnant to, or inconsistent with the freedom and independence of this State, and the form of government therein established, and which has not been otherwise provided for, in the whole or in part, not abrogated, repealed or become obsolete, are hereby declared to be in full force." 1 Rev. Stat., ch. 22.

It is true that this particular point has not yet been expressly decided by our Courts, so far as we can learn from our reports, but in Falls v. Carpenter, 21 N.C. 237, where certain assignments of an interest in lands were objected to on the ground of maintenance or champerty, the Court said that they did not come within the objection, without expressing or intimating that the common-law doctrine in relation to those offenses was not in force in this State. See, also, Martin v. Amos, 35 N.C. 201, where it was held that a bond with the conditions that the plaintiffs should "break the will" of a deceased person, of whom the obligors were next of kin, or "if (108) they failed to break the will, should pay all the costs of the suit that shall be brought," is void on the ground of maintenance and as being against public justice.

The result of our argument is that the agreement made between the defendant, William R. Strong, and his father during the pendency of the suit for the slaves mentioned in the pleadings, whereby the said defendant was to have one-half of the said slaves in case of a successful defense, was founded upon the consideration of champerty, and is therefore illegal and void, unless the near relationship of the parties prevents the application of the law to their case.

As to the milder offense of maintenance, "it seems to be agreed (says Hawkins' P. C., book 1, ch. 27, sec. 26) that whoever is any way of kin or affinity to either of the parties, so long as the same continues, or but related to him by being his godfather, may lawfully stand by him at the bar and counsel and assist him and also pray another to be counsel to him; but he cannot justify laying out any of his own money in the cause, unless he be either father or son, or heir apparent to the party, or the husband of an heiress." So Blackstone says, 4 Com., 135, "A man may maintain the suit of his near kinsman, servant, or poor neighbor, out of charity and compassion, with impunity." It is evident from these authorities, which have been adopted and followed by all the late writers on the criminal law, that persons standing towards each other in the near relation of father and son may maintain and assist each other in their suits by their money, their services and their influence. Such is the dictate of those feelings of affection and regard which the God of nature has placed in the breasts of parent and child, and the common law has wisely abstained from attempting to control them. The question remains: can that support and assistance which ought to spring from the purest (109) and best feelings of humanity become the subject of traffic? — of bargain and sale? Can a son, before he comes to the aid of his father — perhaps a sick and dying father — when sore pressed by a lawsuit, stipulate for half the fruits of success? We have not as yet been able to find any such exception to the common law of champerty. A son may defend his parent, if forcibly attacked in his person or property, and may repel force by force, yet he cannot strike for revenge, nor, as we conceive, for money or other property. Certainly the father himself could not justify a blow under the plea of son assault demesne, where he had hired his adversary to assail him. If the son would not be justified when striking for defense, not under the promptings of natural affection but for reward, his act being unlawful, no agreement between his father and himself, founded upon such consideration, could be sustained. But whether this be so or not, we think there is no doubt that a conveyance from a father to a son of land, while another person was in the adverse possession of it, would not pass the legal title, and from the analogy to this we conceive that a son who bargains for a portion of what may be gained or saved in his father's suit at law, as the price of his assistance, cannot be exempted from the operation of the law against an offense deemed so odious in others.

In taking this view of the common law in relation to champerty, it has not escaped our attention that in the construction of the statute of 28 Edward I, ch. 11, passed for the purpose of increasing the penalties attached to this offense, it was held, "that no conveyance or promise thereof relating to lands in suit, made by a father to his son, or by any ancestor to his heir apparent, is within the statute, since it only gives them the greater encouragement to do what by nature they are bound to do." 1 Hawk. P. C., ch. 27, Tit. Cham., sec. 18. This construction necessarily follows from the very words of the exception contained in the last clause of the statute: "Mes en ces case nest (110) mye ce entender, que home ne poit aver counsaile des countours, et des sages gents pur son donnent ne de ses prochiene amies," 2 Coke Inst., 563. Lord Coke translated "de ses prochiene amies" to mean "of their next blood," and of course it excluded from the penalties of the statute gifts from a father to his son pending the suit. So far from proving our view of the common law to be incorrect, it the rather sustains it by showing that there was a necessity for inserting the exemption in the statute.

But the counsel for the defendant contends that the plaintiffs cannot have the relief which they seek, of having the agreement between the defendant William and his father declared void and removed out of their way, because they have no special prayer to that effect. To this it is successfully replied by the counsel for the plaintiffs that their bill contains a general prayer under which the specific relief may be given, because it is not inconsistent with their special prayer and is sustained by the admitted allegations of the bill. 1 Madd. Ch. Pr., 171; Adams' Eq., 309, Mit. Ch. Pl., 39.

The plaintiffs are entitled to a decree for an account upon the principles set forth in this opinion.

Decree accordingly.

Cited: Green v. Campbell, 55 N.C. 449; Munday v. Whissenhunt, 90 N.C. 461; Ravenal v. Ingram, 131 N.C. 552; Council v. Bailey, 154 N.C. 60.