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the privilege, and require the court to exclude the male, having had sexual intercourse with any one evidence on that ground. The witness may waive during a certain time. A. answers that he does. it, and testify in spite of any objection coming A. cannot afterward refuse the name of the person from the party or his counsel. If ordered to tes- with whom such intercourse was bad (13). tify in a case where he is privileged, it is a matter 3. K, was indicted for body-snatching. M. beexclusively between the court and the witness. ing called, testifies that he knows K. to be innocent. The latter may stand out and be committed for M. cannot refuse to answer why he knows it, even contempt, or he may submit; but the party has no though it may criminate him (14). right to interfere or to complain of the law."
4. In a prosecution for selling spirituous liquors (C.)
without a license, F., the defendant's clerk, testi
fies that he had sold rum at the store, but never 1. In an action by C. against D., a witness called by C. is permitted by the court to refuse an answer
brandy. He is then asked whether he did not, on to a question put by D., on the ground that it is a
a certain day, sell T. some brandy. He refused to criminating question. The decision is improper,
answer for fear of criminating himself. His re
fusal cannot be sustained (15). for it is not a criminating question. D. may make a ground for error in the rejection of testi
5. In an action for divorce from a wife, a witness
testifies that he knows that the wife has committed mony (9) In case 1 the court said that this differed from
adultery. He must go on and tell with whom, even Illustration B, as the party had been improperly
though it may be himself (16). deprived of testimony to which he was entitled.
In case 1 it was said: “He must have been fully It has been held in England that when a witness
aware of his privilege from the beginning, and
should have claimed it earlier in order to have serefuses to answer, and without his evidence the prosecution must fail, and the judge commits him
cured it. If a witness consents to testify at all, so for contempt, he will, to prevent a failure of jus
as to criminate himself as well as the defendant in tice, discharge the jury (10).
the matter on trial, he must answer all questions
legally put to him concerning that matter. He RULE. Where a witness testifies voluntarily to one cannot be allowed to state such facts only as he circumstance in a criminating transaction he must an- pleases to state, and withhold other facts. If he suer all inquiries concerning the same transaction (a), could be allowed so to do injustice might be done but not as to other and unconnected criminating mat- to the defendant, either by the keeping back of testers (11) (b).
timony which would tend directly to bis acquittal, (A.)
or which would so discredit the witness as to in1. A witness, without objecting, testifies that he duce the jury wholly to disregard his previous has been convicted of the forgery of the bill to testimony. which the inquiry relates. He is then asked, “who In case 2 A. might have refused to answer the passed the bill,” but refuses to answer.
first question, because he might be the man himself, fusal cannot be sustained (12).
and the answer was a link in the chain. But hav2. A., a man, is asked if he knows of B., a fe- ing furnished that link, he could not refuse to fur
“Can the witness," said Oakey, J., (9) Cloyes v. Thayer, 3 Hill, 564 (1842); Clark v. Reese, 35 Cal. 89 (1868); Close v. Olney, 1 Denio,
“proceed to state material facts bearing upon the (10) R. v. Charlesworth, 2 F. & F. 327 (1860). (11) "If a witness purposely states a part of a transaction,
case, and favorable to one party, and when crosssuch as will make for him or the party calling him, even examined by the opposite party in reference to the though but slightly, he should not be protected, but where it
apparent that he intends to disclose nothing that may re- same subject, decline answering by reason of his quire his going further, and what he does disclose may well enough stand without affecting the point at issue, and more
privilege not to criminate himself?
* It over is drawn out by questions where the full effect of the an- would seem quite reasonable to go somewhat furswers cannot readily be seen by him, his privilege should not thereby be taken from bim. If it is it can be worth but little,
ther than the present case requires, and adopt the for very few witnesses, without the fullest instruction, could,
broad principle that the witness must claim his upon the spur of the occasion, readily apprehend the effect of their answers to many questions the shrewd counsel might privilege in the outset, when the testimony he is put, while the counsel themselves might be well aware that the answers would lead directly to the point desired.” Co.
about to give will, if he answers fully all that apburn v. Odell, 30 N. H. 546 (1855); Pleasant v. State, 15 Ark.
pertains to it, expose him to a criminal charge, and 024, 1853); People v. Lobman, 2 Barb. 216 (1848); Dixon v. Vale, 1 C. & P. 278; East v. Chapman, 2 id. 570: Chamberlain
if he does not he waives it altogether." Wilson, 12 Vt. 491 (1840); Brown v. Brown.5 Mass. 320 (1809); Mayo v. Mayo, 119 Mass. 290 (1876); East v. Chapman, 1 Mood.
In case 3 it was said: “The witness is not to be & Malk. 47 (1827). It seems to be the rule now in England that compelled to answer any question if the answer will the witness is entitled to claim the privilege at any stage of the inquiry, and it makes no difference that he has already
tend to expose him to a criminal charge. But if answered the inquiry in part. R.v. Garbett, 2 C. & P.474 (1847); Paxton v. Douglass, 18 Vesey, 239 - contrary to the American
he state a particular fact in favor of the respondent, rule, as stated above. It has been ruled in Massachusetts he will be bound on his cross-examination to state that a judge is not required to instruct a witness that if he wishes to avail himselt of his privilege he must raise the ob
all the circumstances relating to that fact, although jection
before answering any thing. com. v. Howe, 13 Gray, in so doing he may expose himself to a criminal 28 (1859). But in the same state it was subsequently held that when it appears to the judge that the witness did not un- charge. We shall not compel the witness to state that derstand that it he answers upon any subject having any tendency to criminate him he must answer every thing about it, (13) Foster v. Pierce, 11 Cush. 437 (1853). the judge may allow him to claim his privilege afterward, (14) State v. K., 4 N. H. 562 (1829). and strike out his previous testimony. Mayo v. Mayo, 119
(15) State v. Foster, 23 N. H. 353 (1851).
(18) Brown v. Brown, 5 Mass. 320 (1809); Southard v. Rex(12) Com. v. Price, 10 Gray, 472 (1858).
ford, 6 Cow, 258 (1820).
Mass. 290 (1876).
he knows the respondent to be innocent if a full ac- a transaction, and refuse to disclose the rest on the count of his knowledge on that subject will tend to ground that he is thus privileged. But this does furnish evidence against himself. But if he chooses not seem to be a case of that character. The witto testify that fact, we shall permit the attorney-gen: ness was called to prove the fact of his poverty, and eral to inquire how the witness knows that fact, and to this he speaks fully. He is then inquired of compel him to answer the question. It is clearly whether he had not property to a considerable inadmissible to permit a witness to give a partial amount in some previous years, and admits that he account of his knowledge of a transaction, sup
had. Then comes the inquiry how he had disposed pressing all the circumstances, whether the evi- of that property; and this, although not entirely dence is to be used in favor of or against the State.” | independent of the facts he has testified to, is so
In case 4 it was said: “Where a witness dis- far distinct that we think he was authorized to closes a part of a transaction in which he was crimi- stop there, and claim his privilege, notwithstandnally concerned, without claiming his privilege, he ing he had given some testimony on the subject. is then bound to go forward and state the whole. In fact that seems to be the proper place in which Especially ought this to be so where the facts dis- to make the claim. When asked in the first place closed are in favor of the party calling him. In if he was destitute of property, there is no obvious this case the witness had testified to facts tending propriety in his alleging that he could not disclose to show that the testimony of the government's that without subjecting himself to a prosecution. witness was untrue. He also testified that he had If he had gone on to speak in part of the disposisold rum for the respondent at the store, but did tion that had been made of his property, it might not recollect ever to have sold brandy. But when have presented a different case.” the question was put to him directly, if he did not
JOHN D. LAWSON. himself that afternoon, after his brother had gone away, sell Jefferson any brandy, he then for the first time claimed his privilege. This he could not
SENATOR TITUS NON-IMPRISONMENT BILL. do, having told a part of the truth, he should disclose the whole."
THE question of the abolishment of imprisonment (B.)
as a means of enforcing judgments in civil ac•
tions, has for several years been before the Legisla1. A witness has testified, without objecting, ture of this State; and as it is probable that will be that she has had criminal connection with A. She disposed of in some manner at the present session, it is not afterward obliged to answer whether or not seems desirable to call attention to the generally deshe has had criminal connection with B. (17)
fective condition of the existing law of arrest and im2. A, testifies that he is destitute of property.
prisonment, as worked out by judicial interpretation
of the statutes relating thereto, and of its impolioy He then admits that he had considerable money
and inhumanity as a system of coercive or retributive several years previous. Being thereupon asked justice. what has become of it, he declines to answer, as it The subject of arrest is one of great importance, inmay criminate him. His refusal at this stage is volving as it does the liberty of the citizen, which in a
free government is the vital principle of the Constituproper (18).
tion. The Seuate, sensibly impressed with the gravity In case 1 it was said: “The rule that a witness of the question, has for four successive years (includis not obliged to criminate himself is well estab-ing the present) passed at an early day the bill introlished. It is contended however that if the witness duced by Seuator Titus, abolishing imprisonment on waives that privilege when testifying to one fact in
fival judgment, except in cases of contempts of court
and actions for working women's wages. Definite the cause, he cannot claim it while testifying to
legislation on the subject has been defeated heretofore any other fact material to the issue. If he consents
however by the dilatory action of the successive judicito testify to one matter tending to criminate him- ary committees of the House, in reporting the Senate self, he must testify fully in all respects relative to
bill when referred to them. that matter, so far as material to the issue. If he
The charges to be made against the existing law of waives the privilege, he does so fully in relation to
imprisonment on final judgment in civil actions, are:
First, That it fails in many cases to accomplish the that act. But he does not thereby waive his priv- object for which it was created. ilege of refusing to reveal other unlawful acts Second, That in its present condition it is grossly inwholly unconnected with the act of which he bas consistent and unjust. spoken, even though they may be material to the Third, That it is unsound in principle, and permits issue. His consent to speak of one criminal act
a man to be deprived of his liberty without a trial by
jury. cannot deprive him of that protection which the
Fourth, That it is impolitic and inhumane. law affords him, so far as respects other criminal Fifth, That it is unsound on economic grounds. acts not connected with it. Thus the prosecutrix Sixth, That it is subject to great abuse, and is an inwas not obliged to answer whether she had an il- strument of oppression in the hands of a merciless
creditor. licit connection with another man."
Seventh, That it is unnecessary, as there are abundIn case 2 it was said: “There are instances in
ant and sufficient remedies in the law, for the collecwhich a witness cannot be heard to relate a part of
tion of judgments without it. (17) Low v. Mitchell, 18 Me. 373 (1841); Tillson v. Bowley, 8
It has been decided by the highest court of this
State, in construing the statutes for the discharge of (18) Amherst v. Hallis, 9 N. H. 108 (1837).
insolvent debtors, that a judgment debtor imprisoned
id. 163 (1831).
on execution, who has disposed of his own property ment for debt does not prevail may come into this jurwith intent to defraud the creditor at whose suit he is isdiction and enforce his judgment by our harsh remeimprisoned, is not entitled to his discharge, but maybe dies, when he could not resort to them at home, and imprisoned perpetually. Matter of Brady, 69 N. Y.218; thus it gives to the judgment of the foreign State a below 8 Hun, 437; Coffin v. Gorlay, 20 id. 308; Matter greater force than it was intended to have by the triof Watson, 2 E. D. Smith; Matter of Fowler, 8 Daly, bunal which rendered it, for the judgment there, when 548.
read in connection with the statutes of that State, In the Matter of Brady the Court of Appeals said: would be a qualified judgment in this sense, and would "That this construction of the statute may lead in say in effect: "A. has judgment against B. for $1,000, some cases to uulimited imprisonment is possible, but but which is not enforceable by execution against the we have nothing to do but to construe the law and en- person of B.” To give it a contrary effect would seem force it as it is; we have no power to abrogate it or not to be "giving full force and effect to the judge soften its hard features."
ments, decrees, and statutes" of such State, in the And this although the fraudulent disposition was spirit of the United States Constitution. Besides there made before suit was commenced, and although the is this practical difficulty: The debtor might defend debtor shows satisfactorily that he has no property at the action successfully if sued originally in this State, the time he applies for his discharge, but has lost it because by reason of its highly penal wature here, he through misfortune. 8 Daly, 548. So that even now- would be entitled to hold the plaintiff to strict praoin the language of Judge Savage
“He tice, and would be protected by the presumptions may be imprisoned not because he will not pay, but which are raised in favor of liberty in such cases. 8 because he cannot."
Abb. Pr. 412. But in the foreign tribunal there is no How then does such a law accomplish its object in need of these safeguards because the action there is practice in such a case if it is admitted to be coercive not regarded as being highly penal; but is enforced in its intention?
here as if it were, and the iniquity of the practice is But those who seek to uphold the law say: “The that the defendant cannot open the judgment in our law is also intended to punish fraudulent debtors." courts, but is limited to questioning the jurisdiction "Men who commit frauds should be punished.” Even of the original tribunal. 80! But should a man be doomed to perpetual impris- This is an intrinsic defect in the law; it is wrong in onment for such an offense ?
principle and vicious in practice. It also imposes a Besides it is not the office of the civil law to punish tax upon the citizens of this State to support a debtor crimes; the criminal law takes cognizance of them, its (may be for life) for the benefit of a non-resident who penalties are adjusted with reference to the turpitude pays no taxes here, and whose own State will not asdisplayed in the offepse, and its mode of procedure sume a reciprocal burden for the benefit of our citiis better calculated to secure a proper administration of retributive justice and to protect the liberties of the Considered from an economic standpoint a law citizen.
which renders a human life useless; which ties a man's In strange contrast to the severity of the rule In re hands and forces him into idleness and ruin, because Brady, and illustrating the inconsistency and injustice he has nothing, and then calls upon him to retrieve of this branch of the law, is the doctrine of Sydam v. himself, is palpably absurd ;- enforced and unlimiBelknap, 20 Hun, 87, where the petitioper was ar- ted idleness, having for its object the enriching of the rested in an action for converting moneys and securi- creditor, and maintained at great expense to the ties belonging to plaintiff, while he was acting in a State. fiduciary capacity. The petitioner was duly exam- The Romans made the debtor work out his debt for ined under proceedings for his discharge, and his tes- the benefit of his creditor, and he was his slave actimony showed that after accepting the trust reposed cordingly; there was a frugal policy in this, and stern in him he fraudulently and in violation of said trust justice, which although it seems barbarous to us had used the money and property of the plaintiff for his nevertheless the merit of being reasonable. own personal use. It was held that the petitioner was We read with horror of the primitive Roman law entitled to his discharge, on the grouud that the evi- which condemned the judgment debtor to be cut in dence did not show that he had disposed of or made pieces and his body distributed among his creditors, over any of “his own property with intent to de- unless his friends would pay his debts (see Hunter's fraud creditors. The General Term distinguished the Roman Law); but we countenance a law which procase from In re Brady, by saying that in the latter de- longs the debtor's agony, killing him by inches, where fendant was charged with disposing of his own prop- its black-mailing process fails to extort a satisfaction erty, and could be imprisoned perpetually, while in the of the judgment from his distressed family or friends. present case defendant had disposed of the property of What lawyer does not know of the efforts made by another and could accordingly be discharged under the unscrupulous practitioners to frame their actions and statute.
conduct their proceedings so as to get the judgment Judicial interpretation has worked out the condem- debtor into jail, when they know he is insolvent, and nation of these statutes, for it has made them declare for the open and avowed purpose of filching the money that it is an unpardonable offense in some cases for a from his family; of the extortions of sheriffs, the anman to dispose of his own property, while if under the noyance and disgrace of public arrest, arranged at a same circumstances he disposes of the property of time when it will most embarrass and distress the another, which he holds in the sacred character of a debtor, and the hundred and one hardships to which trust, he may go free. So much for the consistency and the poor debtor is subjected. justice of the law.
These are not imaginary cases, but the actual exIt might be urged as a grave objection to the exist- periences of every day. ing law that it permits a man to be deprived of his There will be abundant and sufficient remedies left liberty without a trial by jury, where the natural term in the law for enforcing honest dealing and also for the of his life may be at stake.
collection of judgments, if the law of imprisonment is Where the facts upon which a defendant is arrested abolished as provided in the Titus bill. are extrinsic of the cause of action he is tried upon af- The Penal Code, enacted in 1881, makes the obtainfidavits. 1 Abb. Pr. (N. S.) 419.
ing of property by false pretenses a larceny. It also Another serious objection to the existing law is that provides ($ 544), "that a purchase of property by means a creditor residing in a community where imprison. of false pretenses is not criminal where the false pre
is | BILL
tense relates to the purohaser's means or ability to pay, the defendant in a suit to recover from a life insurance unless the pretense is made in writing and signed by company the amount of a policy on her husband's life. the party charged.” A most salutary provision which The complainant thereupon made an agreement with her prevents perjury and injustice. A protection how- to prosecute the claim; and if successful, to receive oneever which is not extended to the civil debtor. This half of the amount recovered, and if not successful, to is the punitory remedy which will exact good faith in receive nothing. He did prosecute the suit, paid the commercial transactions if enforced. And the law costs incurred, and recovered the amount of the policy, favors the prosecution of crimiuals.
with interest thereon. Held, that he was entitled to oneCaveat venditor (as has been suggested), is the rule half of the whole amount. which should govern transactions involving credit. No
ILL for relief. On final hearing on pleadings and
proofs. The opinion states the facts. own good judgment, he is usually paid for the risk which he takes as he includes it in his price; the cus
J. Coult, for complainant. tom of "discounts for cash," among merchauts, illus
S. H. Baldwin, for defandant, Mrs. Van Houten. trates this. The creditor should be entitled to absolutely fair
THE CAANCELLOR. This suit is brought to recover dealing, and protected from fraud and misrepresenta
one-half of a fund, represented by a bank check, given tion as to the debtor's ability to pay, and this the crimi
by the Masonic Mutual Life Insurance Company, of nal law affords him.
Newark, in payment of the debt and interest due on If there is any offense now punishable by imprison
the decree of this court in Van Houten v. Pine, 11 ment in a civil action which is not a crime or a misde
Stew. Eq. 72. For the taxed costs and interest thereon mmeanor, it should be made so.
the company gave its check to the complainant in this The remedy by execution against the property of a
suit, Abram M. Hassell, Esq., who was solicitor for the judgment debtor is assisted by the proceeding sup
complainant (Mrs. Frances L. Van Houten) in that plementary to execution, which is a most efficient one, and for the debt and interest gave her its check remedy when carefully pursued; you are more likely payable to her order. That check was certified to be to find property by the examination under direction of
good by the bank on which it was drawn. Mr. Hassell counsel than from the debtor's schedule presented on
took possession it to secure him for the amount of application for a discharge; it is more prolific of dis- his fee for collecting the money, according to an agree. covery, and if you find property which is all you want,
ment between him and Mrs. Van Houten on that head, the court will direct it to be paid to a receiver, and
made before the suit was begun. She refused to inin default of so doing he will be committed for con
dorse the check, or to authorize him in any way to retempt.
ceive the money for it, or to pay him the fee, accordHere is a strong coercive reinedy, beginning at the ing to the agreement. This suit is brought against her right end of the matter, after it has been discovered
and Messrs. Pine and Ingalls, in their official capacithat the debtor has property and not before. The debtor ties (one is president and the other secretary and may still be imprisoned, but his affair is with the court,
treasurer of the company, which is unincorporated), which may discharge him in its discretion. He is under and the bank, for relief in the premises, to establish its control and care but not at the mercy of a relent
Mr. Hassell's lien for the fee on the check and the less creditor.
fund which it represents, and to compel Mrs. Van Who will say that the community has suffered since Houten to indorse the check, or authorize him or some the passage of the Stilwell Act, exempting honest one else to indorse it for her, so that he may draw the debtors from imprisonment. Every argument which money, and after taking out his fee, pay the balance was urged in favor of its adoption, applies with equal
to her. The bill also prays that the company may be force to the adoption of the Titus bill.
required to give to him a new check for or pay to bim Many of the States have already passed similar laws the amount of the fee, and pay her the balance. A abolisbing imprisonment in civil actions altogether, geueral demurrer to the bill by Messrs. Pine and li. including Maryland, Missouri, Minnesota, Missis. galls has been allowed, on the ground that the bill presippi, Alabama, Tennessee, Texas, aud District of Col. seuts no claim for relief against the insurance comumbia.
pany (infra p. 113). Since this suit was begun the In Indiana, Virginia and Vermont,arrest is allowed in money has, by agreement of parties, been drawu upon cases where it is made to appear that defendant is the check, and after paying $250 to the complainant about to depart from the State.
on account of his demand, and the like sum to the soIn California imprisonment is allowed in same cases licitor of Mrs. Van Houten, tbe balance has been paid as here but limited to two years.
into court to the credit of the cause. Even the opponents of the Titus bill agree that the The complainant alleges that Mrs. Van Houten law needs serious amendment. Is it not] best that a agreed with him, before the suit to recover the insurlaw so full of defects and inconsistencies, so subject to
ance money was brought, that if he would undertake abuse, so grossly unjust and inhumane, and withal so
to collect the claim upon the policy, which was for impolitio, should be swept away altogether? The Senate has declared for four successive years that it
$1,000, on the life of her deceased husband, she would should be; it remains to be seen what the statesmen
pay him for his fee for the service one-half of the and law-makers of the House will do for the cause of amount recovered, whether obtained by suit or comhumanity and higher civilization, and to place the promise. If he failed to collect or settle the claim, he Empire State abreast of sister States in enlightened
was to have nothing. She denies that she agreed to legislation,
J. NOBLE HAYES.
pay him any specified sum for his services, but in her
answer admits that before the suit was begun she ATTORNEY – INDIGENT SUITOR - AGREEMENT that sum and declined also to enter into any agree
offered to pay him $500, but says he declined to accept AS TO COMPENSATION.
ment for payment of his fee out of the money to be re
covered, on the ground that the existence of such
agreement, il kuown, might prejudice ber in the suit,
and told her he would charge her only what was right. HASSELL V. VAN HOUTEN. *
The proof establishes, by weight of evidence, the fact Under the statute authorizing the assignment of counsel to
that the agreement was made as alleged in the bill. indigent suitors, the complainant was assigned to assist
Not only does the complainant swear to it positively * To appear in 39 N. J. Eq. Reports 105.
and distinctly, but he is corroborated by proof of the
admissions of Mrs. Van Houten that such was the agreement between them. Jacob H. Vau Ness testi. fies that after the suit was ended, she said that she had agreed with Mr. Hassell to give him half of the claim for his services. William M. Smith says she said he had agreed to give Mr. Hassell half of the principal for his services. William M. Clark testifies that she told him while the suit was in progress, and soon after it was begun, that she had employed Mr. Hassell to prosecute it, and that he was to have half of whatever he should recover. There is also evidence that she made a like offer to another lawyer before she employed Mr. Hassell, but the former declined to undertake the business for a contingent fee. There is nothing opposed to this testimony by and on behalf of the complainant, except her own denial (notwithstanding wbat is said in the answer on the subject) that she ever agreed or offered to pay him any sum for his services. Mrs. Van Houten was in indigent circumstances, and unable to pay a lawyer for his services in endeavoring to collect her claim. According to the bill, she had offered to settle it with the company if they would pay her a comparatively small sum of money (from $300 to $500), enough to buy a lot in a cemetery. The answer does not deny it. Mr. Clark testified that after the suit was brought she requested him to get a settlement with the company on those terms, but he declined. Before Mr. Hassell undertook the business, she appears to have been unable to get any one to prosecute or undertake to collect her claim, because she was unable to pay for such service. The amount recovered was $1,339.27, of wbich $339.27 was interest. The suit was in progress for over a year and a half. After the decree had been obtained, she said she was willing to pay Mr. Hassell $500, one-half of the principal, and in her answer she says, as before stated, that she originally offered bim that sum. He and she disagree as to his right to one-half, $169.63, of the interest. There is no legal objection to the euforcement of the contract in question. It has been held by the Supreme Court that the law of champerty and maintenance does not exist in this State. Schomp V. Schenck, 11 Vr. 195. And I do not see any reason for denying the validity of such an agreement. If such agreements cannot be enforced, there must be many cases in which the poor will be unable to assert their rights. It is true our law and practice provide for the furnishing by the court of the requisito professional assistance to poor persons having a cause of actiou or suit, and for the rendering by the attorney or solicitor and counsel, and of all other officers of the court, of their services in the litigation, without compensation, yet there are services, such as the procuriug of the necessary proof, and expenses, such as the cost of printing, eto., which may be requisite to the vindication of the suitor's rights, which are not thus devolved upon the attorney or solicitor or counsel so assigned. In this case, such an 'assignment of Mr. Hassell was made. Out of the taxed costs recovered he paid all the fees to which, by law, the other officers of the court who had rendered services in the suit would have been entitled had there been no assignment. It is urged that under'that, assignment he was bound to render his services without compensation, and therefore is debarred from enforcing the agreement. But the object of the humane provision under consideration is to furnish to indigent suitors the means of vindicating their rights, which otherwise, because of their poverty, they would not be able to assert; and if they are unsuccessful, the officers of the court whose aid has been required under it must of pecessity go without compensation. The fact that he has been so assigned will not debar the lawyer from enforcing an agreement for compensation dependent upon success in establishing the right, by which suc
cess the suitor will be provided with the means of remuneration. The complainaut in this case has established a valid contract for the payment to him, for his services, of one-half of the sum recovered, besides his costs, and he should be decreed to have a lien accordingly upon the fund in court for so much of his claim as still remains unpaid, besides his costs of this suit.
NOTE.-By an old order in chancery, after a party had been admitted to sue in forma pauperis, and counsel had been assigned, no fee, profit, or reward could be taken by him from the pauper, nor could any agreement be made for compensation afterward. Beames on Costs, *118; 1 Dan. Ch. Pr. *41.
Iu Philipe v. Baker, I C. & P. 533, in an action of assumpsit for business done as a solicitor, with the common counts, it appeared that the defendant had employed the plaintiff to defend him in a suit in chancery; that the plaintiff, before filing an answer therein, had prepared a petition that the plaintiff be allowed to proceed in forma pauperis, which was ordered, and the answer thereupon entered, but that the suit proceeded no further. Held, that the plaintiff, as solicitor, could only recover the amount of money he had actually paid out.
In Dooly v. Great Northern Railroad, 4 El. & Bl. 341; 2 El. & El. 576, the plaintiff sued in forma pauperis, and recovered £150, and the court certified for costs. The plaintiff's attorney thereupon paid fees to his counsel, and claimed in the bill of costs the fees so paid, and also remuneration for his owu services. The master on taxation disallowed both. Lord Campbell, at chambers, approved the master's decision. On rule to show cause, Lord Campbell's ruling was affirmed. See also James v. Harris, 7 C. & 1'. 257; Houre v. Coupland, 14 Jur. 247.
Iv Wright v. Burroughes, 3 C. B. 344, & pauper plaintiff having behind the back of his attorney, and under circumstances showing an inteution to deprive him of his costs, agreed with the defendants, in au action for unliquidated damages, to execute a release, and the defendant having pleaded the release, the court, at the attorney's instance, set aside the plea, Tindal, C. J., saying: “It is the spes spolii alone that induces the attorney to undertake the conduct of a pauper cause." See Quinnan v. Clapp, 10 Abb. N. C. 394, note.
In Holmes v. Penney, 9 Exch. 584, the plaintiff brought an action for work and labor, as an attorney. At the trial it appeared, in June, 1851, the defendant retained the plaintiff as his solicitor in a chancery suit, in which he was a defendant; that he stated to the plaintiff that he was a poor man, but that he would be entitled to some property upon his father's death. The plaintiff agreed to do the work “upon the ordinary terms,” and consented not to press the defendant, but to wait until he should come into the possession of his property.
On July 29th the defendant obtained an order to proceed in the chancery suit in forma pauperis, and the plaintiff was appointed his solicitor therein, and the defendant had counsel also appointed to him.
Ou October 31st, defendant's father died, of which the plaintiff became aware, but took no steps to have the defendant dispaupered. On December 8th an order was made that the defendant should be dispaupered as from October 31st. On March 10, 1852, the bill in chaucery was dismissed.
This action was brought to recover compensation for services performed in the chancery suit, including counsel fees, which however had not been paid. The plaintiff recovered a verdict for £180, the full amount of his claim, with leave to the defendant to move to reduce it to such sum as the court should think fit. On a rule to show cause, held, that plaintiff could not re