Meloche v. Déguire, (1903) 34 SCR 24

Supreme Court of Canada

Meloche v. Deguire, (1903) 34 SCR 24

Date: 1903-10-26

FEROEL  A MELOCHE et al (DEFENDANTS)

Appellant;

And

THEOPHILE DEGUIRE et a/.(PLAINTIFFS)

Respondent.

And

ALEXANDRE ROBERT et uxo

Mis-en-cause.

1903: Oct 8; 1903: Oct 9; 1903: Oct 26

PRESENT:—Sir Elzéar Taschereau C.J. and Sedgewick, Davies, Nesbitt and Killam JJ

ON APPEAL FROM THE COURT OF KING'S BENCH APPEAL SIDE, PROVINCE OF QUEBEC.

Conveyance of land——Description of property sold) —— Partition—" Petitory action—" Quebec Act, 1774"—Introduction of English criminal law —-Champerty—Maintenance—Affinity and consanguinity —Parties interested in litigation — Litigious rights — Pacte de quota litis — Contract — Illegal consideration — Specific performance — Retrait successoral

The heirs of M. induced several persons related to them either by consanguinity or by affinity to assist them as plaintiffs in the

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prosecution of a lawsuit for the recovery of lands belonging to the succession of an ancestor and in consideration of the necessary funds to be furnished by these persons, six of the respondents and the mis en cause, entered into the agreement sued on by which said plaintiffs conveyed to each of the seven persons giving the assistance one-tenth of whatever might be recovered should they be successful in the lawsuit In an action au petitoire et en partage, by the parties who furnished such funds, for specific performance of this agreement ;

Held, reversing the judgment appealed from, (Q. R. 12 Q. B. 298) Davies J. dissenting, that the agreement could not be enforced as it was tainted with champerty, notwithstanading that the consanguinity or affinity of the persons in whose favour the conveyance had been made might have entitled them to maintain the suit without, remuneration as the "Drice of the assistance.

Held,further,

1°.That there could be no objection to the demande au pétitoire being joined in the action for specific performance.

2°. That the defence of retrait de droits litigieux could not avail in favour of the defendants as it is an exception which can be set up only by the debtor of the litigious right in question. Powell v. Waiters (28 Can. S C.R 133) referred to.

3°. That as the conveyance affected a specified share of an immoveable the exception of retrait successoral could not be set up under art. 710 C. C. Baxter v. Phillips (23 Can. S. C. R. 317) and Leclere v. Beaudry (10 L, C. Jur. 20) referred to.—Moreover, (affirming the judgment appealed from) in the present case, the controversy does not relate to the succession and, in any event, the assignor cannot exercise the droit de retrait successoral.

Semble, however that the retention of a fractional interest in the property might have the effect of preserving the right to retrait suocessoraI.

4°. That the laws relating to champerty were introduced into Lower Canada by the "Quebec Act, 1774," as part of the criminal law of England and as a law of public order the principles of which and the reasons for which apply as well to the Province of Quebec as to England and the other provinces of the Dominion of Canada. Price v. Mercier (18 Can. S. C. R. 303) referred to.

APPEAL from the judgment of the Court of King's Bench, appeal side ([1]), affirming the judgment of the Superior Court, sitting in review at Montreal, by

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which the judgment of the Superior Court, District of Montreal, at the trial (Curran, J.) had been reversed and the plaintiffs' action maintained with costs.

The case is fully stated in the judgments now reported.

Beaudin K.C. and Martin K.C. for the appellants. The contract sued upon is, on its face, champertous illegal and void under the laws of England prohibiting such contracts which laws became part of the criminal law of Quebec by force of the conquest and of "The Quebec Act, 1774." Power v. Phelan ([2]) ; Hopkins v. Smith ([3]). Although in some special cases maintenance is now permitted, there is a distinction to be made when the transactions amount to champerty and are tainted with illegality as against the public policy. Bradlaugh v. Newdegate ([4]) ; Harris v. Brisco ([5]) ; Hutley v. Hutley ([6]) ; in re Cannon ([7]).

The respondents might not have been guilty of unlawful maintenace by simply paying out their money or giving security for the costs of the appeal, to enable their relatives to secure their rights. This is not what is charged. What made the contract illegal and champertous was bargaining for division of the spoils should the action in which respondents had no personal interest, prove successful. The appellants alone had an interest in these lands and were declared by the judgment of the Supreme Court to be the owners of the Dorval Islands ([8]).

This valuable property has buildings and other improvements upon it and the revenues ($3,250) claimed by the action are several times greater than the whole amount contributed by respondents in costs. Can it be urged that respondents' motive was

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only a desire to benefit the appellants, and not self-interest, when they stipulated for seventy-five per cent of this valuable property? They stipulated for a division of the field (campum partire) ; the lion's share for themselves. Their relationship does not prevent such a contract from being champertous. There is in Hutley v. Hutley ([9]) a full discussion of the question of collateral interest, Every contract or agreement into which champerty enters as a consideration is illegal and void and champerty is a good defence. Neither party can enforce it while it remains executory, but where it has been executed and money received in pursuance of it no action will lie to recover it 5 Am. and Eng. Encycl. of Law (2 ed.) p. 822 n. 3 ; Ritchot v. Cardinal ([10]) ; Dussault v. La Compagnie du Chemin de fer du Nord ([11]), and authorities there cited ; O'Connor v. Gemmill ([12]) ; Carr v. Tannahill ([13]); Brady v. Stewart ([14]) ; Cholmondeley v Clinton ([15]).

In order to render an agreement void on the ground that it is in the nature of champerty, it is not necessary that it should amount strictly to champerty as a punishable offence. Rees v. De Bernardy ([16]) ; Canadian Pacific Railway Co. v. Birabin ([17]) ; arts. 889, 990, 1582, 1533 0. 0.

The appellants moreover are entitled to succeed on the plea invoking retrait successoral under the provisions of the Civil Code art. 710. The property in question was the only property which they acquired from the estate of their grandfather and they retained a fractional interest in the property under the alleged champertous agreement, and having such interest, they

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are entitled to invoke the provisions of article 710 C. C., and to exclude the respondents from participation in the division of this property. .Fuzier-Herman under article 841, C. N. nn 22-23-24-25-27-28-163-164-165-167-169; Baxter v. Phillips ([18]) ; 10 Laurent No, 857.

The contract does not give the right to exercise an action en partage. It contains no description of any immovable property, nor does it state that any immovable property or rights therein are conveyed. What the respondents sought to acquire under the agreement was an undivided interest in what came to appellants out of their lawsuit with the Simpsons and under that contract, even if valid, they acquired no proprietory rights to the immovables in dispute, nor can they exercise the action en partage in any event— their recourse, if any, being an action en reddition de compte.

Beique K.C. and Robertson for the respondents. The defence of retrait litigieux was abandoned in the court below, and is clearly unfounded. Under article 1582 0. 0., such a defence is never open to any but the debtor of the litigious right (the Simpson estate), and not even to him when the right " has been made clear by evidence and is ready for judgment," (Art. 1584 0. C. par. 4). When the agreement in question was entered into the right of the present appellants was apparent upon the record, it being merely necessary to apply the law to undisputed facts.

There is no retrait successoral. Art. 710 C. C. applies only to property which has devolved by succession. The appellants claim title by gift inter vivos. This gift divested the donor of the property, in his lifetime, and the first donee (whose succession appellants renounced) had only a life interest. Further, the retrait successoral is not open to the assignor but only to coheirs

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not parties to the assignment. 16 Demolombe, No. 48 ; 10 Laurent, Nos. 358, 386 388 ; 6 Aubry & Rau, p. 523, par. 621 ter. (text and note 27) : Dalloz, u Successions," No. 1860 ; Beaudry-Lacantinerie, 2 " Successions No. 3386; 5 Huc, No. 330. Nor does it lie in respect of the assignment of specific property. 10 Laurent, No. 864 ; 16 Demolombe, No. 83 ; 2 Aubry & Rau, p. 567, note 15 ; Dalloz, 1870-1 422 ; Fuzier-Hermann, C. N., art. 841, Nos. 30, 32, 34.

Art. 1025 C. C. removes all difficulty as to the form of the action. The subject matter of the contract was certainly a thing certain and determinate, being undivided shares of whatever might be awarded by the judgment in Meloche v. Simpson ([19]),which as the parties well knew could be nothing else than a lot of land in the Parish of Lachine. The mutual consent to alienate and acquire that lot, consequently, made the respondents owners and the ownership being undivided the action in partition lies.

The insufficiency of the description for purposes of registration is irrelevant. Registration does not affect rights of contracting parties inter Se. The only consequence of non-compliance with art. 2168 C. C. is that the registration does not affect the lands. Between the parties all that is necessary is that the thing be certain and determinate. Provided it be so, any description whatever will suffice

The plea of champerty is equally unfounded. The agreement sued upon was not opposed to but, on the contrary, was in furtherance of public policy. upon this point we refer to the dictum in Ram Coomar Coondoo v. Chunder Canto Mookerjee ([20]) at page 210. The claim against the Simpson estate was believed by both appellants and respondents to be just, and in fact was so. Although just it had been disallowed

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by the first two judgments, which, if allowed to stand, would have had the effect of oppressing appellants and as they had no sufficient means, apart from the property itself, they were compelled to ask for help to carry the case further. The agreement was not extortionate but fair.. There was no possibility of injuring or oppressing the adverse party, nor of misleading justice. The agreement was in aid of suitors who had a just title and no adequate means, apart from the property itself, whereby they could further prosecute their just claim, and being fair between the parties and not injurious or oppressive, was in furtherance of right and justice and necessary.

The judgment a quo must therefore be confirmed unless such an agreement is a criminal offence and there cannot be any pretence that it is forbidden by the civil law of the Province of Quebec where there is no such offence known as that of champerty under the laws of England. It was not specially introduced at the time of the conquest nor by any subsequent legislation. The English law was directed against evils of a local and political nature, has been long obsolete there and inapplicable to the altered state of society and property and it is unsuited to the special conditions of Quebec, inhabited by different races of people and where contracts are governed by local law.

The respondents are related to the appellants by consanguinity and by affinity, and a person who has no pecuniary interest in the result of a suit but is related to the suitor, may lawfully "maintain" such suit in a proper way. The legality or illegality of such a contract depends upon the circumstances of the individual case, the test being whether the contract viewed as a whole is consistent with justice and public policy. In this case the parties called upon to give

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assistance could lawfully maintain the suit taken by their relatives. Guy v. Churchill ([21]) ; Fischer v. Kamala Naicker ([22]) ; Dessault v. Compagnie du Chemin de Fer du Nord ([23]) ; Hutley v. Hutley ([24]) ; Findon v. Parker ([25]) ; Harris y. Brisco ([26]) ; Bradlaugh v. Newdegate ([27]).

The purchase of litigious rights in Quebec has the sanction of the law except where certain specified persons become purchasers ; arts. 1484,1485,158215584 C. 0. The object of the champerty laws is the protection of the adverse party. The interests of the parties to the alleged champertous contract are not taken into account any further than in any other contract. In a contract of alleged champerty, the agreement to divide directly affects the contracting parties only, and only affects the adverse party indirectly by increasing the probability that the suit will be unlawfully maintained Therefore where unlawful maintenance is impossible, the agreement to divide does not affect the adverse party at all.

The authorities cited by appellants are neither in point nor binding upon this court. Hutley v. Hutley, already discussed, is favourable to respondents. In Power v. Phelan ([28]) the persons held to be champertors were perfect strangers to the persons whose rights they acquired and had no antecedent interest in their suit. In O'Connor v. Gemmill ([29]) the contract was made by a solicitor and in Quebec it would have been void under art. 1485 0. C. Brady v. Stuart ([30]) was not a case of champerty at all.

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We refer also to Attorney General v, Stewart ([31]) ; Mayor of Lyons v. East India Go. ([32]) ; and Jephson v. Riera ([33]).

The judgment of the majority of the court was delivered by:

THE CHIEF JUSTICE.—The respondents' action is one an pétitoire et en partage, claiming from the appellants the portions of certain property near Montreal which were ceded to them by the appellants, as they allege, by an agreement of the 19th of October, 1896, entered into between them by a notarial deed of that date under the following circumstances :

The appellants (defendants) were the plaintiffs in the case of Meloche v. Simpson, reported in this court at page 379, vol. 29. It appears from the evidence that after having been defeated twice in their action in that case (in the Superior Court and the Court of Appeal), the appellants were disheartened and had expressed their intention to give up the fight with Simpson and not to take any further appeal. Théophile Deguire (now one of the respondents) and one of the appellants co-plaintiffs in the action against Simpson, succeeded however in getting them to bring the case to the Supreme Court upon the respondents signing the agreement now sued upon. By that writing it is stipulated that the three appellants

ayant résolu d'en appeler d'un certain jugement (viz. that rendered by the Court of Queen's Bench in the cause in question) ont sur la demande (of six of the respondents and of the mis-en-cause) cédé et transporté sans aucune garantie quelconque à chacun de ces derniers, un dixième indivis de tout ce qu'il reviendra dans la dite poursuite an cas où ils obtiendraient jugement en leur faveur, c'est-à-dire que le jugement de la cour d'appel serait renversé par le jugement à intervenir à la cour suprême.

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The consideration was that each of the said transferees was to bear one-tenth of the costs and disbursements to be incurred by reason of the appeal, and that five of them should each be jointly and severally liable to the appellants for the payment of five-tenths of such costs and disbursements

de plus C6s derniers seront tenus de contribuer aux déboursés qui pourront etre exigés par leurs avocats.

Alphonse Meloche by the same deed transferred one-half of his remaining one-tenth share to the respondent Lucien Deguire in consideration of the latter bearing the whole of his (Meloche's) share of the costs and disbursements. It was further agreed that if Antoine Meloche should be unable to contribute his share of the expenses, the other parties (except Alphonse Meloche) should bear it equally.

The respondent Théophile Deguire thereupon procured the required sureties and the appeal was taken resulting, as appears by the report, ubi suprâ, in the reversal by this court of the judgment which had dismissed the appellants' action and the recovery against Simpson of the property in dispute. It is the performance of the aforesaid covenant entered into by the appellants that the respondents now ask by this action.

To the respondents' demand, the appellants pleaded, 1st. Champerty. 2ndly. A right to the retraté successoral under Art. 710 C. C. and the retrait de droits litigieux under Art. 1582 0. C. 3rdly. That as the agreement in question contained no description of the land ceded to the respondents their action as taken au pétitoire et en partage could not be maintained.

This last ground has not been given countenance to in any of the three courts through which this case has passed, and rightly so. Assuming that, as regards third parties, the description of the property ceded to respondents in the writing in question would not be

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sufficient in a case where the question of the respective rights of the parties came in conflict as to the ownership of the property, I do not see that, between the contracting parties themselves, there is the least room for any of them to doubt what was the property, or the undivided part thereof, that the appellents agreed to transfer to the respondents. Art. 1025 C. C. enacts that :

A contract for the alienation of a thing certain and determinate makes the purchaser owner of the thing by the consent alone of the parties, although no delivery be made.

And according to Art. 1087, when this obligation has been contracted under a suspensive condition, the, debtor is bound to deliver the thing which is the object of it, upon the fulfilment of the condition» Here upon the reversal by the Supreme Court of the judgement that had dismissed their action, the appellants were bound to fulfil the contract they had agreed to were it lawful. And this action is nothing but a demand by the respondents of the specific performance of that obligation. As to the partition, there is nothing objectionable in the respondents adding it to their conclusions an pétitoire. It could hardly be contended that the respondents were obliged to take two actions, first, one an pétitoire, and secondly, after succeeding an pétitoire, one en partage.

As to the plea of retrait de droits litigieux, the appellants do not reiterate their contentions in their factum and it might be taken as abandoned. Art. 1582 of the Code upon which it was based, has no application whatever. Assuming that it extends to anything else than to sales of debts and choses in action it is exclusively to the debtor, the party against whom the litigious right is claimed, that the right de retraire is given. Powell v. Watters ([34]).

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As to the retrait Successoral art. 710 of the Civil Code gives no right to it when the assignment or sale is as here of a specific share in an immoveable property. Baxter v. Phillips ([35]) ; Leclere v. Beaudry ([36]). Moreover as held in the Court of Review and. the Court of Appeal, there is no succession in controversy here. These courts add as another reason on this point against the appellants' contentions, that the assignor himself has not the right to the retrait successoral. It was, however, strenuously urged before us by counsel for the appellants that as they had retained a fractional interest in the property they are entitled to this right, citing 10 Laurent No. 357 and Fuzier Herman, C. C. under Art. 841 Nos. 22 et seq. 163 et seq. There would seem to be some foundation for their contention on this point. But assuming it to be well founded, the two first objections against the said plea cannot be got over.

Now as to the appellants' plea of Champerty upon which the Superior Court (Curran J.) dismissed the respondents' action. The formal judgment of that court is as follows :

Considering that it appears on the face of the deed, upon which the present action is based, that the present plaintiffs undertook to furnish and become sureties for moneys to enable the said suit to be carried before the Supreme Court of Canada and that the considerations of such advances and surety were, that the lands and proceeds of revenues thereof should be divided in shares between the parties to said deed in the event of such anneal being? successful That such agreement was distinctly one of campum partire and being champertous was illegal and could not produce any civil effects, and cannot form the basis of an action at law for the enforcement of the provisions thereof.

Considering that in view of the champertous nature of such agreement, forming the basis of the present action, the same cannot be maintained, doth dismiss the present action as champertous with costs.

The Court of Review upon an appeal by the plaintiffs reversed the judgment of the Superior Court, dismissed

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the plea of champerty and granted the conclusions of the action for the following* reasons

Considérant que ledit acte du 19 octobre 1896, n'est pas entaché de champerty ; qu'il ne viole aucune loi d'ordre public ; qu'il a été consenti de part et d'autre de bonne foi et pour valeur et consideration licites entre membres d'une même famille désireux de s'entr'aider de se protéger et de se réunir dans le but de faire entrer dans le domaine familial un bien de famille venant de l'ancêtre commun qu'il n'a été passé ni dans un but de spéculation malhonnête ni pour persécuter la partie adverse ni pour atteindre un résultat injuste, mais qu'au contraire il n'a eu pour but et pour conséquence que de faire reconnaître par la plus haute cour du pays des droits de propriété longtemps méconnus, grâce aux efforts réunis et aux ressources combinées des parties au dit acte, que sous l'empire du droit commun, tant criminel que civil de la Grande-Bretagne, tel qu'interprété par la jurisprudence de cc royaume, un tel contrat n'est pas considéré comme entaché de vice et délit de champerty, qu'ainsi la dite première défense des défendeurs aurait dû être renvoyée au lieu d'être maintenue, par la cour de première instance.

Upon an appeal from that judgment by the defendants to the Court of King's Bench, the judgment of the Court of Review was affirmed. Hence the appeal to this Court by the same parties.

I am of opinion that the judgment of the Superior Court should be restored. The judgment appealed from seems to have lost sight of the distinction between maintenance and champerty. That the contract in question is one by which the appellants agreed to cede to the respondents a part of the land in dispute between them and Simpson, in the event of their succeeding in recovering it from Simpson, upon condition that the respondents were to share with the appellants in the disbursements required for the appeal and pay seventenths of the costs of the appeal should it fail cannot be doubted. That is the agreement in unequivocal terms. Now this clearly was maintenance, striking out of it the stipulation of “ campum partire." Then, an agreement that if the suit in which the maintenance

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takes place succeeds the property in dispute shall be divided between the plaintiff and the maintainor, or in other words, to bargain with a plaintiff to pay the expenses of a suit wholly or in part on condition that the plaintiff will divide with the party who so shares in the expenses the land or other matter sued for, if successful in such suit, is undeniably champerty. Now it is as undeniable, I take it, that every contract into which champerty enters as a consideration is null and void, à nullité d'ordre public and that an action founded upon such a contract cannot be maintained

The respondents contended that the interest they had in the suit against Simpson, remote as they had to admit it to be entitled them to the stipulation that they would “campum partiré " if the c campum " was recovered. But that contention cannot prevail. That might have been sufficient to justify them in coming to the assistance of the appellants, without being guilty of maintenance, but did not entitle them to stipulate the “campum partiré " as the price of their assistance. Maintenance is lawful under certain circumstances but maintenance in consideration of an interest in the subject matter of the action to be maintained cannot receive the sanction of a court of justice. Any one for instance even not interested at all, may, if he acts only from philanthropic motives, lawfully give money to a poor man to enable him to carry on a suit ; but the stipulation on his part that if the poor man succeeds he will share in the proceeds is prohibited and illegal as champertous. The respondents here evidently did not think that their interest in the suit in question was alone large enough to induce them to share in the costs of the appeal. What prompted them was not the interest they would now invoke ; it was the expecation to “ “campum partire " with the appellants. It

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was only upon the promise of getting seven-tenths of the field, if recovered, that they agreed to come to the appellants' rescue. Such an agreement cannot be enforced.

It was contended by the respondents at the argument as it had been in the courts below that champerty does not form part of the Criminal Law of the Province of Quebec as introduced therein by the Imperial .Act of 1774. I cannot treat that contention as a serious one. It has never been doubted anywhere that the law on this point is the same in that province as it is all over Canada, and the respondents have been obliged to concede that their contention was entirely a novel one. The valuable treatise on the criminal law of the province published as far back as 1842 by the learned Jacques Crémazie, includes maintenance and champerty as in force therein and the jurisprudence of the courts of the province is without a single exception in that sense. This court itself in Price v. Mercier ([37]) has considered that the law on the subject is the same in the Province of Quebec as in England. There are cases, no doubt, as argued by the respondents where it has been held that certain special civil and criminal laws of England did not extend to its subsequently acquired possessions. But the reasons upon which these decisions have been given have no more application to the Province of Quebec in relation to the law of champerty than they have to the rest of the Dominion The offence has always been considered as " one against public justice, in that it tends to keep alive strife and contention," and the object of the law is to hinder the " perverting" of the remedial process of the law into an engine of oppression." It is a law of public order, the principles of which and

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the reasons for which, apply as well to Quebec as to England or the other parts of this Dominion.

The respondents seem to rely strongly on the fact that the appellants eventually succeeded (and this, they say, because of their assistance) in their suit against Simpson» But 1 fail to see that the result of the suit in any way justifies post hac what the law prohibited. They are asking to be rewarded for having committed a breach of the law instead of being made to suffer the consequences attached to that offence in the courts of civil law that is to say, the privation of the right to derive any benefit from their champertous contract. The respondents' contention on this point, if it prevailed, would lead to the result that when a plaintiff recovers, the champertous agreement was lawful and the champertor is entitled to the share covenanted for, but that it is only if the plaintiff fails in his action that the agreement to share with him was unlawful Or in other words that, where there is nothing to divide, the agreement to divide gives no right of action, but where there is something to divide, then the champertor would have an action. That cannot he so. The result of the case against Simpson does not affect the question.

I would allow the appeal with costs and dismiss the action with costs in all the courts against the respondents.

DAVIES J. (dissenting.)—In this case I understand there is no difference of opinion amongst the members of this court as to the application to the Province of Quebec of the laws relating to Champerty and Maintenance. The majority of the court is however of the opinion that while the circumstances of the case and the relationship of the parties were such as might have justified the respondent in directly assisting the

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appellants in their lawsuit without incurring the penalties of maintenance, nevertheless the provision in the agreement for a division of the subject matter of the litigation amongst the parties renders the agreement a champertous one which the courts will not enforce.

Champerty is defined to be a species of which maintenance is the genus. It is said to be a more odious " form of maintenance'' but is only a form or species of that offence. The gist of the offence both in maintenance and champerty is that the intermeddling is unlawful ° that it is officious and in a suit which in no way belongs to the intermeddler, but it is the same in each the difference being only in the mode of compensation.

An interference or an intermeddling by a mere stranger which would amount to maintenance or champerty is excusable if it comes from persons who either have a real interest in the litigation maintained by them or who act in the bona fide belief that they have 5 A. & Eng. Enc. of Law, p. 819.

In this case the assistance given to the appellants in their lawsuit against the Simpson estate by the respondents would, it is conceded, have been perfectly legitímate but for the stipulation that the compensation they were to receive was to consist of part of the fruits of the litigation if successful. The parties were related to each other within the degrees of relationship which justify or excuse interference and assistance in the prosecution of litigation. They were either brothers-in-law or nephews of the plaintiff litigants, and their interest either through their wives or their mother in the subject matter of the litigation was a real interest and not an imaginary one. At any rate there cannot be any doubt, in my opinion, that they acted in a bonâ fids belief that they had such an

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interest. Apart from the amount of the share they were to receive if the litigation was successful, on which I express no opinion one way or the other, as the point was not argued, the agreement in the case so far from being an unlawful or officious intermeddling was a commendable interference. The agreement when viewed in the light of all the circumstances connected with the title to the lands being litigated and the relation of the Meloche family to these lands, was really a family arrangement. The sisters had a right to assume that under the power of appointment contained in the deed from their grandfather they would receive some substantial portion of the property and with this belief their interference and that of their husbands to assist in maintaining their brothers' claim to the property unless clearly contrary to law should be aided and not frustrated by the courts. I see nothing against good policy and justice, nothing tending to promote unnecessary litigation, nothing that could be called immoral or permeated with a bad motive either in the agreement to assist or in the stipulation that in the event of success the property gained should be divided amongst the family including the respondents.

The action had been already through two courts ; the highest court in the province had declared against the appellants' claim and it had either to be abandoned or carried to this court With the assistance of the pre-sent respondents it was so carried and was successful, and with their further assistance an application for leave to appeal to the Judicial Committee of the Privy Council was successfully resisted. Having with the assistance of their sisters' husbands and their nephews successfully vindicated their rights to the property the appellants are now seeking the aid of the courts to repudiate their contract because it contains pro-

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visions for remunerating those who gave the necessary assistance, by assigning them a share in the property recovered.

The Judicial Committee of the Privy Council in the case of Fischer v. Kamala Naicker ([38]), composed at the time as was said by Coleridge C. J. in the case of Bradlaugh v. Newdegate ([39]) of a

collection of perhaps as great lawyers as in the year 1860 could be brought together

expressed their opinion that the qualities attributed by English law to Champerty or Maintenance

must be something against good policy and justice : something tending to promote unnecessary litigation ; something that in a legal sense is immoral and to the constitution of which a bad motive in the same sense is necessary.

This definition of the law was entirely accepted as correct by the Lord Chief Justice in Bradlaugh's Case (2), and renders it therefore necessary in each case to look at the substance of the transaction.

In the case at bar, as I have already stated, I look upon the substance of the transaction namely the division of the fruits of the litigation, as a commendable family arrangement, the only point upon which I refrain from expressing any opinion being as to the fairness of the allotment of the shares a question not argued.

In Finden v. Parker ([40]) Abinger C. B. said :

The law of maintenance as I understand it upon the modern constructions is confined to cases where a man improperly and for the purpose of stirring up litigation and strife encourages others to bring actions or to make defences which they have no right to make.

And in Bradlaugh v. Newdegate (2), Lord Coleridge C. J. speaking of the common interest in the result of

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litigation which would justify the interference and assistance of third persons, says at p. 11 :

As a general rule there is no doubt that such a common interest believed on reasonable grounds to exist will make justifiable that which would otherwise be maintenance.

And after referring to this qualification "upon the doctrine laid down in all the older authorities he goes on to say :

But then the instances they give show the sort of interest which is intended, a master for a servant, or a servant for a master ; an heir ; a brother ; a son-in-law ; a brother-in-law. &c.

In the case we are considering there is no doubt in my opinion, and I do not understand that in the judgment of this court there is any doubt that the relationship of the parties, their interest in the subject matter of the suit, and the peculiar circumstances of the case all fully justified the respondents in interfering and giving assurance to the present appellants in carrying on their former appeal. The sole ground upon which their agreement is to be declared void is because of the provision to divide the subject matter in litigation in case of success. The case of Hutley v. Hutley ([41]) is relied upon to support this conclusion. There are, it is true some strong observations in the reasons given by some of the learned judges in that case which can fairly be held to lend countenance to that contention, but they were mere obiter dicta and in no sense necessary for the decision of the case. In the subsequent case of Guy v. Churchill ([42]) Chitty J. reviews all the authorities and concludes that both maintenance and champerty are founded on the same principle or policy of law, namely, the tendency of the transactions to prevent the course of justice and concludes as follows:

The case of Hutley v. Hutley (1) forms no exception to what I have stated in reference to the parties having a common interest. The

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case was one of maintenance and champerty, and it was held that the existence of what was termed a collateral interest was not sufficient to justify the transaction. In that case these were two wills, and the plaintiff being himself interested under the first will, sought to enforce against the defendant, the heir and one of the next-of-kin, an agreement to assist the defendant in upsetting the second will on the terms of his giving the plaintiff an interest in the property which would pass to the defendant on an intestacy. The agreement was based on the assumption of the plaintiff having no interest, the first will being obviously treated as a nullity. I know of no case where, the actual interest of the parties being sufficient to justify maintenance, the transaction has been avoided merely because they agreed to divide the subject matter of the litigation among themselves in a manner not in accordance with their actual title.

After a careful review of the authorities, and applying the rule to be deduced from them as I understand it to the facts of this case I have reached the conclusion that the agreement does not contravene the law of champerty as understood at the present day, and that the appeal should be dismissed.

Appeal allowed with costs.

Solicitors for the appellants: Foster, Martin, Archibald & Mann.

Solicitors for the respondents: Béique, Turgeon, Robertson & Dessaulles.