Sec 422

Maintenance does not necessarily involve a contingent division of the profits, and consists in an agreement, by a champertous agreement between the plaintiff and his attorney, is no ground for the dismissal of the suit. "The answer," said McCrary, J., "alleges that this suit being prosecuted by one of the attorneys for plaintiff, upon a champertous contract, by which he is to pay the expenses of the litigation and receive as his compensation forty per cent. of the sum realized, the defendant moves to dismiss the suit for that reason. The proof sustains the allegation of champerty; the testimony of the defendant himself being quite conclusive upon that point. This makes it necessary for the court to decide the important question whether the plaintiff can be defeated in his action upon the note, by the proof that he has made a champertous contract with his attorney. In other words, can the defendant, the maker of a promissory note, avoid payment thereof or prevent a recovery thereon, upon the ground that the holder of the note has made a void and unlawful agreement with an attorney for the prosecution of a suit upon it ? The authorities upon this question are in conflict. Some courts have ruled that if the fact that a suit is being prosecuted upon a champertous contract comes to the knowledge of the court in any proper manner, it should refuse longer to entertain the proceeding. Barker v. Barber, 14 Wis. 142; Webb v. Armstrong, 5 Humph. 379; Morrison v. Deadrick, 10 Humph. 142; Greenman v. Cohee, 61 Ind. 201.

"Other courts have held that the fact that there is an illegal and champertous contract for the prosecution of a cause of action is no ground of defence thereto, and can only be set up by the client against the attorney when the champertous agreement itself is sought to be enforced. Hilton v. Woods, L. R. 4 Eq. Cas. 432; Elborough v. Ayres, L. R. 10 Eq. Cas. 367; Whitney v. Kirtland, 27 N. J. Eq. 333; Robison v. Beall, 26 Ga. 17; Allison v. R. R., 42 Iowa, 274; Small v. R. Co., 55 Iowa, 582. This latter view is in my judgment supported by the better reason. It is not necessary for the full protection of the client to go so far as to dismiss the suit, for he is in no manner bound by the champertous agreement; nor are there any reasons founded on public policy that should require such dismissal. If all champertous agreements shall be held void and courts firmly refuse to enforce them, they will thereby be discouraged and discountenanced to the same extent and in the same manner as are all other unlawful, fraudulent, or void contracts. If, on the other hand, the defendant in an action upon a valid and binding contract may avoid liability or prevent a recovery by proving a champertous agreement for the prosecution of the suit between the plaintiff and his attorney, an effect would thus be given to the champerty, reaching very far beyond that which attaches to any other illegal contract. The defendant in such case is no party to the champerty; he is not interested in it nor in any wise injured by it. If the contract upon which he is sued is a bona fide contract upon which a sum of money is due from him to the plaintiff, and if he has no defence upon that contract, I can see no good reason for holding that he may be released by showing that the plaintiff has made a void and unlawful agreement with his attorney concerning the fee and expenses of the suit.

" The tendency of the courts in this party having no pecuniary interest in a suit, to aid in promoting its litigation.1 That maintenance, in this sense, is no longer an indictable offence in England, is illustrated by the fact that, in the Tichborne litigation, parties having no pecuniary interest in the result not only were permitted without prosecution to canvass the country for support for the claimant, but were adjudged in so doing, notwithstanding the publicity and excitement that attended their proceedings, not to be guilty of a contempt of court.2 It should be noticed, also, that the English courts have sustained purchases of shares in a company for the purpose of instituting suits to restrain the directors from acts alleged to be illegal.3 In this country, though there are jurisdictions in which maintenance is held an offence at common law,4 the prevalent opinion is that it is with us no longer indictable, and hence that agreements by persons to promote country is stronger in the direction of relaxing the common-law doctrine concerning champerty and maintenance so as to permit greater liberty of contracting between attorney and client than was formerly allowed, and this for the reason that the peculiar condition of society which gave rise to the doctrine has, in a great measure, passed away. In some of the states the common-law rule is altogether repudiated, and it is held that no such contract is now invalid unless it contravenes some existing statute of the state. Sedgwick v. Stanton, 14 N. Y. 289; Voorhees v. Dorr, 51 Barb. 580; Richardson v. Rowland, 40 Conn. 572; Matthewson v. Fitch, 22 Cal. 86; Hoffman v. Vallejo, 45 Cal. 564; Lyttle v. State, 17 Ark. 609.

Maintenance is stirring up unfounded litigation.

"The common-law doctrine, however, prevails in Missouri, according to the doctrine of the supreme court of the state, in Duke v. Harper, 66 Mo. 55. While following that ruling, I am disposed, in view of the general tendency of American courts, to relax somewhat the rigor of the English rule, to apply it only to the champertous contract itself, and not to allow debtors to make use of it to avoid the payment of their honest obligations.

" It follows that the defence of champerty in this case cannot be maintained, and that the motion to dismiss must be overruled."

1 Wh. Cr. L. 8th ed. sec 1854.

2 R. v. Skipworth, 12 Cox C. C. 371; Wh. Cr. Pl. and Pr. sec 957. See Com. v. Dupuy, Bright. 44; S. C, 4 Clark, 1.

3 Bloxam v. R. R., L. R. 3 Ch. 353. That the maintenance statutes are now regarded as obsolete in England, see editorial notice of Bradlaugh v. New-degate, in London Law Times, Sept. 24, 1881, 345.

4 Thurston v. Percival, 1 Pick. 415; Lathrop v. Amherst Bk., 9 Met. 489; Martin v. Clark, 8 R. I. 389; Elliott v. McClelland, 17 Ala. 206; Duke v. Harper, 66 Mo. 51; Hayney v. Coyne, 10 Heisk. 339. See Newkirk v. Cone, 18 111. 449; Thompson v. Reynolds, 73 111. 11; Backus v. Byron, 4 Mich. 535.

suits in which they have no pecuniary interest are not, in themselves, void.1 It has been held, also, in England, that the common law is not in this respect in force in India.2 And a transaction is not void on this ground unless it 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 is in the same sense necessary."3 Mr. Pollock, in citing this passage, says that "it fairly represents the principles on which English judges have acted in the modern cases."4