DISTRICT COURT.

Grey River Argus, Volume XII, Issue 1161, 18 April 1872, Page 2

DISTRICT COURT.

Tuesday, April 16. (Before His Honor Judge Harvey.) I>RURY V. OOONEY, KENNEDY, AND 00. This morning, after His Honor had taken his seat, he gave the following judgment in the case Drury v. Cooney and party : — This action was brought by the plaintiff, Edward Alfred Drury, against the defendants, Thomas Couney, James Armi strong, and Robert Kennedy, to enforce specific performance of the agreement set one in the particulars of the plaintiff's demand, or in the alternative to recover damages for breach of such agreement. The plaintiff on the hearing of the case abandoned the claim for specific performance. The plaintiff at the time of the making of the agreement, and for some time previous thereto, had been acting as a mining agent, and by permission of t.he Warden and upon request of parties had been allowed to appear in the Warden's Courts at Ahaura and other places for litigants in those Courts, in pursuance of the provisions of the Gold Fields Acts and the rules made thereunder. The circumstances under which the agreement in dispute was entered into are fas follow : — Defendant Thomas Cooney, together with Rody Kerrigan and James Kelly, held three men's ground along the reef now known as Kelly's Reef, Murray Creek, and defendants Robert Kennedy and James Armstrong, together with Frank Cooney and James Mooney, since deceased, held five men's ground in an adjoining claim on the l same reef. These claims were held I under certificates of registration, No. 1288 and 1289, dated 11th June, 1870. The extent of the claim was 60ft per man along the line of reef. The defendants and the other parties above-mentioned agreed to put their claims together, and to apply for a prospecting claim, and they did accordingly apply for and obtain a certificate of registration from the Warden atCobden, entitling them to a prospecting claim along the reef of 600 ft. This was dated the 20th J une, 1870. This prospecting claim was called by the name of " Rory of the Hills." The defendants with the others above-mentioned were sued by the holders 1 of an adji lining claim (Anderson and | party ),|for encroachment, in the Warden's I Court at Ahaura, and on the 7th of J uly, 1-1870. The day on which the case was to be tried the defendants and the said Jas. Mooney, since deceased, entered into the agreement with the plaintiff set out in the declaration. Defendants having refused to transfer the share to the plaintiff, this action is brought, and the defendants have pleaded thereto rive pleas. The first plea, which was that the proceedings were irregular, was overruled by the Court and abandoned by the defendants' counsel as untenable. The second plea of no good nranr, I mM'\.in?YAYi q a r ptt9y tf/Mi <&/& agreement was champertous, are the substanj tial pleas relied upon by the defendants. In order to arrive at a correct decision in this case it will be necessary to consider the position of the plaintiff with respect to the agreement and to his power to make it. It is admitted by the plaintiff's counsel that if plaintiff had been a solicitor of the superior Courts he would not be allowed to recover on such an agreement, for there are certain fixed scales of allowance for attorneys and solicitors ■; costs in all cases made with the view of protecting the unwary and inexperienced client against the advantage which the legal knowledge of attorneys is supposed to give them — attorneys being considered a class strong in mind, dealing I with those who are of weaker mind, the | Legislature has interfered to protect the weaker party.— Per Byles, J., Philbii v. Hazlc, 29 L. J., G. B. 372. It niay therefore be laid down generally, that the attorney cannot, in defiance of these reguj lations, fix a different tariff by a special ! agreement with his client so as to preclude taxation. It is also settled that an attorney cannot make himself secure for future costs by bill, note, bond, warrant of attorney, agreement, or mortgage, although such securities will hold good for costs already incurred.— (Holdsworth v. Wahuman, 1 Dow. 532/ re Whitcombe^ 8 Bmv. 140.) But it is urged on the parb of the plaintiff that he is not a solicitor, and therefore not bound by these regulations which, in the irterest? of the public, . have been passed to restrain solicitors, and that he has a right to make and enforce an agreement, with respect to costs, which a solicitor cannot do. Ido not. think that this view of the case can be upheld, as if it be necessary for the public good to restrain solicitors . duly qualified and admitted to practice, it is the more necessary for the same reason to restrain unprofessional men, and on this ground I have little hesitation in saying that the plaintiff ought not to recover in this action. But it is not necessary to decide the case on this point, as upon the evidence given the agreement is clearly champertous. The action brought against the defendants was for encroachment, and the effect of an adverse decision would be and was to reduce the defendants' prospecting claim by so much as they had encroached, that is to grouud. originally held by them under the two certificates of registration first mentioned. If the plaintiff had succeeded in sustaining the defendants' position, he would have been entitled to a share of the grrund in litigation if his agreement were valid. It is laid down that if a person having no interest in the subject of a suit aid by money or otherwise the parties interested, it is maintenance ; and ;f his object be to share in the; fruits of the action it is (jfhamperty. If an attorney agree not to charge his client costs in consideration of having for himself a proportion of what ho may recover, this agreement is champerty and illegal and void (re Masters 4 Dowl, P. a., ]Bj. An agreement that an attorney, if successful, should receive a portion of the property claimed in < the proceedings precludes him from recovering any costs. (Sprye v. Porter, 26, L.J., QB., 64, Bark y.lHopivood, 30, L.J., 0.P., 217,). Again, an absolute assignment by the client to his attorney of the subject matter of a Buit in course of litiga

tion, and which the attorney is conduct- j 'ing, ia distinctly contrary to public policy, and in the nature of champerty (Wood v. DoivneS) 18 Fe*-., 120). There is no distinction in law as. to chajnperty by an attorney and any other person, ajid the reason why the cases are more plentiful with regard to attorneys would seem to be that they are more often solicited to make such agreements. The agreement in question was to do all legal business in consideration of receiving one-eighth share in the prospecting claim. It was admitted that the appearance in Court on the trial was the substantial part of the consideration. As to thi^kart of the consideration,: I am of opinion it was cbampertous and void, and as to that part of the consideration alleged by the plaintiff to have been given by him, but denied by the defendant?-, lam of opinionit was colorable merely, and in any case it cannot be sustained, as it is impossible to separate it from the other, and a consideration of which part is illegal, and which cannot be separated, renders the whole contract void. The fourth plea I am of opinion is also sustained, for the following reasons : — The prospecting claim which was in litigation was the claim called " Rory of the Hills," and it was of that claim that plaintiff was to receive an eighth share for his services in defending the action brought by Anderson tmd party. But as the object and effect of the complaint was to destroy the existence of the prospecting claim, the agreement must be taken to be an agreement to do certain work and, if successful, to receive a certain reward ; the plaintiff not having succeeded in sustaining the \ defendants 1 position, and the claim "Rory ! of the Hills'' having no longer any existence, the plaintiff is not entitled, to any compensation. The fifth plea is merely a" plea of general issue, and needs no comment. Judgment for defendants with costs. As to the question of costs, the Judge ordered 10 guineas as solicitor's fee, and 16s 6d costs of Court. The Judge remarked that as there was a probability of an appeal, if any of the legal gentlemen wished to have his decision reviewed by a higher Court, he would be happy to afford them every assistance, as he had not arrived at his decision without much consideration. Mr Newton thanked his Honor for his cmrtesy, and stated that it was highly probable there would be an appeal. The Court then adjourned to the 29th instant.