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Updated: May 16, 2025
"This is not the time nor place," says Chief Justice Gibson, "to discuss the legality of contingent fees; though it be clear that if the British statutes of champerty were in force here, such fees would be prohibited by them. But a contract of the sort is certainly not to be encouraged by implication, from a questionable usage, nor established by less than a positive stipulation."
It is unnecessary to inquire here whether such a contract is void as champertous, and contrary to public policy. None of the English statutes on the subject of champerty have been reported as in force here; but it was once a question whether it was not an offence at common law, independently altogether, of any statute enactment.
The lawyers usually contrived to get their money by exacting retainers in advance, and the practice of champerty was common, whereby the lawyer did his work in consideration of a percentage on the sum which was at last forcibly collected. Homesteads were sold for the payment of foreclosed mortgages, cattle were seized in distrainer, and the farmer himself was sent to jail.
Enlightened judges in several of our sister States have so considered it. "The purchase of a lawsuit," says Chancellor Kent, "by an attorney, is champerty in its most odious form; and it ought equally to be condemned on principles of public policy. It would lead to fraud, oppression, and corruption.
"You have enunciated a great principle of law in that statement. They have got to prove damages. Moreover, you have got a counter-claim. It's laceratin' to be compared to a shoat." "And me just goin' to be married," said Curly. "Sure, it ain't right." "Andersen," said I, moving up to the group, "did you ever hear of such things as champerty and maintenance?
Perhaps if I offered to share the spoil with her, if there was any." "Dear me, no," said John; "that would be 'maintenance." "Certainly not," chimed in James, holding up his hand in dismay. "Most clearly it would be 'Champerty'; and did it come to the knowledge of the Court, nobody can say what might not happen."
Then he leaned back in his antique swivel chair, locked his hands behind his head, elevated his long legs luxuriously, and crossed his feet upon the fourth volume of the American and English Encyclopedia of Law, which lay open upon the desk at Champerty and Maintenance.
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