#### Stearns vs. Felker.

Attobney and Olient. (1) *Champerty.*(2, 3) *Bights of attorney and client in ease of ehampm'tom agreement between them.*

1. An agreement between an attorney-at-law and bis client, by which the former is to prosecute an action for the latter, pay the expenses thereof, and divide with the client the amount recovered, is champertous.

2. But in such case the attorney, after prosecuting the action to judgment, *595is entitled to full compensation for his services; and the client is entitled to the fruits of the litigation after paying such reasonable compensation.

3. Any amount collected in such action from third personswho have made themselves liable therein as sureties for the defendant, must be accounted for by the plaintiffs attorney in the same manner as if collected from the defendant himself.

APPEAL from tbe Circuit Court for *Winnebago*County.

Tbe plaintiff appealed from a judgment of nonsuit. Tbe ground upon wbicb sucb judgment was rendered, will appear from tbe opinion.

*James Byrne,*for appellant,

argued tbat tbe agreement between tbe parties was not cbampertous *(Fhallhimer v. Brinch-erhojf, 8*Cow., 648; 4 Blacks. Comm., 185 ; 14 N. Y., 295,296; *By an v.*Martin, 16 Wis., 65); tbat wben a cbampertous agreement as to tbe prosecution of a former suit is relied upon as a defense to a distinct action, it must at least b *e pleaded;*and tbat plaintiff was entitled to recover notwithstanding sucb agreement, even'admitting it to be cbampertous. *Ford v.*Harrington, 16 N. Y., 285, 291 *et*seg; 1 Story’s Eq. Jur., § 30.

*W. B.*Felker, respondent, in person,

contended tbat tbe contract testified to by tbe plaintiff was cbampertous (23 Barb., 420 ; 4 Bl. Comm., 135; 1 Pick, 415; 9 Met., 489; 1 Ohio, 132; 2 Bisb. Cr. Law, §§ 135-137) ; and that after defendant bad fully performed all tbe conditions of tbe contract on bis part, and it was fully executed, plaintiff could not disaffirm, and recover tbe money received upon it. 19 Wis., 463.

LyoN, J.

Action for money bad and received. Tbe complaint avers tbat tbe defendant is a practicing attorney; tbat on tbe 15th of October, 1869, be received from Bray and Armstrong eight hundred dollars to tbe use of tbe plaintiff; tbat due demand of payment thereof bad been made; and tbat tbe defendant has paid over but three hundred and sixty dollars of tbe said eight hundred dollars. This action is to recover sucb unpaid balance.

*596Tbe answer oí tbe defendant admits tbat be is a practicing attorney; tbat tbe plaintiff made tbe demands alleged in tbe complaint; and tbat be paid tbe plaintiff three hundred and sixty dollars; and denies all of tbe allegations of tbe complaint not therein admitted.

It appeared on tbe trial tbat tbe defendant prosecuted a claim for some logs against Wheeler and Raymond, as attorney for tbe plaintiff, and ultimately recovered judgment not only against Wheeler and Raymond, but also against said Bray and -Armstrong, who, by becoming sureties for Wheeler and Raymond in tbe progress of tbe suit, bad rendered themselves liable to have judgment go against them therein. Tbe bill of exceptions does not show tbe amount or character of tbe judgment so recovered, but it appears tbat tbe eight hundred dollars mentioned in tbe complaint was paid to tbe defendant by Bray and Armstrong for tbe purpose of procuring a release of their liability upon such judgment. Such payment, as a matter of course, applied upon tbe judgment. It was a payment of a part or tbe whole thereof, tbe same as though Wheeler and ^Raymond, tbe principal defendants in tbat action, bad paid eight hundred dollars thereon.

Tbe plaintiff testified on tbe trial tbat there was a special agreement made between tbe defendant and himself in relation to tbe prosecution of tbat action, by which tbe defendant was to carry through tbe suit, pay all tbe expenses, and have one-half of tbe judgment. \

Tbe defendant claimed, and tbe learned county judge held, tbat such agreement was champertous; and on motion of tbe defendant, tbe court nonsuited tbe plaintiff. Judgment of non-suit and for costs was perfected and entered against tbe plaintiff, from which be has brought bis appeal to this court.

Tbe agreement between tbe parties was clearly champertous. Champerty is nothing else than an agreement to aid in a suit and then to divide tbe thing recovered. This agreement was to prosecute tbe action, pay tbe expenses, and divide tbe fruits of tbe litigation.

*597But it does not by any means follow that because tbe agreement was cbampertous, tbe plaintiff should have been non-suited. There is almost or quite an unbroken line of authorities which hold that although attorney and client may have entered into an agreement in respect to the compensation for the services of the former, which is void for champerty, yet the attorney does not thereby forfeit his right to full compensation for his services, nor the client his right to the fruits of the litigation after paying for such services what the same are reasonably worth. Such is undoubtedly the law, and it harmonizes with the plainest principles of justice. These remarks are only intended to apply to a case where the relation of attorney and client, or some similar relation of trust and confidence, exists between the parties to the illegal contract.

The following are some of the cases which hold the doctrine above stated: *Thurston v. Percival,*1 Pick., 415; *Rust v. Larne,*4 Littell, 425; *Merritt v. Lambert,*10 Paige, 352; *Same Case,*2 Denio, 607; *Berrien v. McLane,*1 Hoff., 421, and the numerous cases, both English and American, there cited. See also *Ford v. Harrington,*16 N. Y., 285.

It follows that the plaintiff should not have been nonsuited at the trial, but he ought to have recovered the balance of the $800 received by the defendant of Bray & Armstrong, after deducting therefrom the $360 paid to the plaintiff on account thereof, and a reasonable compensation for the services of the defendant as the attorney for the plaintiff in the former action; *'provided*that there remained a balance in his favor after making such deductions.

It is, perhaps, scarcely necessary to say, that if the plaintiff shall succeed, on the future trial of the action, in proving, as he attempted to prove on the former trial, that the contract was not ehampertous, then, of course, the terms of the contract must control the verdict. In such case the plaintiff must be held to pay for the defendant’s services whatever sum he agreed to pay therefor.

*598
      *By the Gourt.*— Tbe judgment of the county courtis reversed, and a new trial awarded.