Sec 423

An agreement, also, by which a party seeking to establish his title to property, divides it with parties who are to aid him in collecting information by which his title may be secured, is not in itself invalid;5 and were a contrary view to be held, not only few agreements for the vindication of patent and other rights could stand, but contracts for the sale of goods would be vitiated in all cases in which it became subsequently necessary to resort to litigation to establish the title to such goods.6 It should be added that there are few business adventures that do not involve sales on shares.7

Agreement to sell claims on shares not invalid.

1 Roberts v. Cooper, 20 How. 467; Danforth v. Streeter, 28 Vt. 490; Richardson v. Rowland, 40 Conn. 565; Voorhees v. Dorr, 51 Barb. 580; Peck v. Briggs, 3 Denio, 107; Sedgwick v. Stanton, 14 N. Y. 289; Schomp v. Schenck, 40 N. J. L. 195; Bayard v. McLane, 3 Harring. 139; Sherley v. Riggs, 11 Humph. 53; Wright v. Meek, 3 Greene (Iowa), 472.

2 Ram Coomar v. Chunder Canto, L. R. 2 Ap. Ca. 186.

3 Fischer v. Kamala Naicker, 8 Moo. Ind. Ap. 170.

4 Pollock,3d ed.319. In Findon v. Parker, 11 M. & W. 675, Lord Abinger confined maintenance "to cases where a man improperly, and for the purpose of stirring up litigation and strife, encourages others either to bring actions, or to make defences they have no right to make." .See Baker v. Whiting, 3 Sumner, 475; Call v. Calef, 13 Mete. 362; Thallhimer v. Brinckerhoff, 3 Cow. 647, to same effect.

5 Sprye v. Porter, 7 E. & B. 58.

6 See Wilson v. Short, 6 Hare, 366; Dickinson v. Burrell, L. R. 1 Eq. 337.

7 Mr.. Pollock (3d ed. 319) states the law as follows: "It is not unlawful to purchase an interest in property though adverse claims exist which make litigation necessary for realizing that interest; but it is unlawful to purchase merely for the purpose of litigation." Hence, it has been held that the creditor of an insolvent company may sell his claim, but that he cannot sell the right to proceed on a winding-up petition. Paris Skating Rink Co. in re, L. R. 5 Ch. D. 959.

Sec 424

It has just been observed that, while an agreement to share a property or right not yet in possession with one aiding in establishing it is not in itself invalid, such an agreement becomes invalid when its consideration is the supplying of evidence to sustain a pending litigation. It is hard to see why the mere fact of bringing a suit should make invalid what would otherwise be valid; nor is it likely that in a case in which there is an honest and fair agreement by a party to sustain by money and personal service the vindication of a contested claim, the validity of such an agreement would be made to depend upon whether a suit on the claims had already been brought. But there is a wide difference between the sale of property on which a question of title subsequently arises, and the sale of a merely speculative claim. It is against the policy of the law that claims of this kind should be hawked about in the market, for the same reason that it is against the policy of the law that gambling ventures should be put up for sale. Hence, it has been held that the assignment of an alleged claim against trustees for breach of trust is void.1 And this has been decided to be the case with regard to claims to salvage,2 and with regard to suits for the redress of personal wrong, which, it has been said, are not marketable commodities, and have no settled business value..3 With this is to be considered the settled rule that, pending litigation, neither party can be permitted to alienate the contested property so as to prejudice the rights of the other.4 But there is nothing (saving the rights of third parties) in the mere fact that a claim is in litigation to prevent the sale to third parties, provided the object of the sale be not to foment litigation, but to dispose of a right.5 Were it otherwise, (1) all that would be necessary to make property inalienable would be to subject it to litigation, and (2) a poor person, having a just claim, could not raise money on that claim, and consequently would have to surrender it because he is poor.1

Purchase on speculation of suit void.

1 Hill v. Boyle, L. R. 4 Eq. 260. See Prosser v. Edmonds, 1 Y. & C. 481; Bell v. Smith, 5 B. & C. 188; Hilton v. Woods, L. R. 4 Eq. 432.

2 The Rosario, L. R. 2 Adm. D. 41.

3 Ibid.; Wald's Pollock, citing Norton v. Tuttle, 60 111. 130; Marshall v. Moans, 12 Ga. 61; Morrison v. Deade-riok, 10 Humph. 342.

4 Bellamy v. Sabine, 1 De G. & J.

582; Sawyer v. Phaley, 33 Vt. 69; Dovey's App., 97 Penn. St. 153. As to set-off, see infra, sec 1025 et seq.

5 2 Story Eq. Jur. sec 1050; Stanley v. Jones, 7 Bing. 377; Harrington v. Long, 2 M. & K. 590; Williams v. Protheroe, 5 Bing. 309 (cited Leake, 2d ed. 733); Thallhimer v. Brinckerhoff, 3 Cow. 647.