by the landlord is void for champerty.' In other states it has been entirely repudiated.'

This change has been called for by the new conditions of modern society, considered in its varied relations, commercial, political and sociological. In many of its phases it has been, both in America and England, emphatically discarded as "inapplicable to the present condition of society, and obsolete." *

It is accordingly asserted on high English authority that no one has been punished criminally for the offense of maintenance or champerty within the memory of living man."

Public opinion in England has advanced so far on this subject that the criminal law commissioners many years ago recommended very earnestly that the offenses of maintenance and champerty be abolished, observing of them that they "are relics of an age when courts of justice were liable to intimidation by the rich and powerful and their dependents."

There is much reason, it thus seems, for the relaxation of the old doctrines pertaining to this subject, so that they may be adapted to the new order of things in the present highly progressive and commercial age. Necessity and justice have, accordingly, forced the establishment of recognized exceptions to the doctrine of these offenses. Among these may be enumerated the following instances: relationship by blood or marriage will often now justify parties in giving each other assistance in lawsuits; and the relation of attorney and client; or the extension of charitable aid to the poor and oppressed litigant;' and especially is an interference in a lawsuit excusable when it is by one who has, or honestly believes he has, a valuable interest in its prosecution.

Church v. Schoonmaker, 115 N. Y. 570; Church v. Becker, 115 N. Y. 562, Mathewson v. Fitch, 22 Cal. 86; Danforth v. Streeter, 28 Vt. 490; Richardson v. Rowland, 40 Conn. 565; Lytle v. State, 17 Ark. 608; Schomp v. Schenck, 40 N. J. L. 195; Hall v. Ashby, 9 Ohio, 96; Bentinck v. Franklin & G. C. Co. 38 Tex. 458; Ballard v. Carr, 48 Cal. 74; Webb v. Camp, 26 Ga. 354.

Sedgwick v. Stanton, 14 N. Y. 289, 296; Masters v. Miller, 4 T. R. 320; Thallhimer v. Brinckerhoff, 3 Cow. 623; Richardson v. Rowland, 40 Conn. 565; 2 Whart. Crim. L. (8th ed.) § 1854, note.

43 Stephen, Crim. L. 234.

"Stephen, Crim. L. note 8.

"But see Barnes v. Strong, 54 N. C. 100; Burke v. Greene, 2 Ball & B. 521. Wright v. Cain, 93 N. C. 296.

The principle is thus generally stated: "It has been seen that the gist of the offense of maintenance is that the interference is officious. Where, therefore, a party either has, or honestly believes he has, an interest, either in the subject matter of the litigation or in the question to be determined, he may assist in the prosecution or defense of the suit, either by furnishing counsel or contributing to the expenses, and may, in order to strengthen his position, purchase the interest of another party in addition to his The interest may be either small or great, certain or uncertain, vested or contingent; but it is essential that it be distinct. from what he may acquire from the party maintained.”

own.

The purchase of railroad bonds from foreclosing bondholders, pending a suit involving the sale of the railroad, in pursuance of a purpose to obtain a lease of the road to the purchaser and his associates, who desired it to form a connection with a road already owned by them; and an agreement by the purchaser to pay all expenses of the pending litigation, although the bonds were not to be delivered until its termination,-are not void for champerty because of the purchaser's interest in the result of the suit.'

A sale of his claim by one who performs labor and furnishes materials for the construction of a gravel road is not champertous." In Thompson v. Marshall, 36 Ala. 504, this principle was applied to a case where one co-defendant, in a suit pending to rescind a conveyance for fraud, purchased the interest of such codefendant in the property in litigation, and assumed a liability for his vendor's share of the costs and expenses of suit. The contract of purchase was held not to be champertous, because the interference was to protect a valuable interest, and was not, therefore, either an unlawful or officious intermeddling.

So in McCall v. Copehart, 20 Ala. 521, where certain persons, erroneously believing that they had an interest in a piece of land then in litigation, purchased the interest of the defendant, and indemnified him against the cost and damages of suit, the court held the transaction free from the taint of champerty, on the ground that the assistance was rendered by the defendants "under

13 Am. & Eng. Enc. L. 76.

Gilman v. Jones, 4 L. R. A. 113, 87 Ala. 691.
Hart v. State, 120 Ind. 83.

the honest belief that they were interested in the result of the suit, and not for the purpose of fomenting litigation."

The modern and better definitions of "champerty" incorporate this idea fully. Mr. Wharton says: "Maintenance is support given to a litigant in any legal proceeding in which the person giving the assistance has no valuable interest, or in which he assists from any improper motive."

In 2 Bouvier's Law Dictionary (14th ed.) 90, it is defined to be "a malicious, or, at least, officious, interference in a suit in which the offender has no interest, to assist one of the parties to it against the other with money or advice to prosecute or defend the action without any authority of law."

So Mr. Addison involves in the definition the idea of agreeing to assist in the prosecution of a lawsuit, "in which the party making the agreement is in no wise interested, and with which he has no just or reasonable ground for interference."

Of course it is necessarily true that, if the offense in question does not amount to maintenance, there can be no champerty in it, because champerty is but a species of maintenance.

In Thallhimer v. Brinckerhoff, 3 Cow. 623, a leading and learned case on the subject of champerty, it is said "that any interest whatever in the subject of the suit is sufficient to exempt him who gives aid to the suitor from the charge of illegal maintenance.” And referring to such interferences it is said: "Upon all such cases these laws were never intended to operate. They were intended to prevent the interference of strangers having no pretense of right to the subject of the suit, and standing in no relation of duty to the suitor. They were intended to prevent traffic in doubtful claims, and to operate upon buyers of pretended rights, who had no relation to the suitor or the subject, otherwise than as purchasers of the profits of litigation."

An agreement giving counsel an amount equal to a part, or a part of, the property to be recovered, as a contingent fee for his services in litigation, was held valid.*

12 Whart. Crim. L. (8th ed.) § 1854.

21 Add. Cont. § 256.

32 Co. Inst. 207.

4Ballard v. Carr, 48 Cal. 74; Ramsey v. Trent. 10 B. Mon. 341; Perry v. Dicken, 105 Pa. 83; Jewell v. Neidy, 61 Iowa, 299; Whithead v. Ducker,

So it is recognized in the Supreme Court of the United States, that attorneys may lawfully contract with their clients to prosecute claims against the United States and receive compensation therefor conditioned upon their success, either as fees or agreed percentages upon the amount recovered.' In any case when litigation ends the party rendering service may contract for payment out of the property recovered.'

In Ware v. Russell, 70 Ala. 174, the court sustained an agreement between attorney and client as free from champerty or maintenance, where the defendant in attachment, in consideration of professional services on the part of the assignee, assigned to his attorney the entire property in litigation, giving him the entire management and control of the suit, and stipulating for his own (the assignor's) active prosecution of it. It was said by Brickell, Ch. J.:

"The corrupting element of the contract [of champerty] is its tendency to foment or protract litigation, its dependency for its value upon the termination of suits, and its introduction, to control and manage them, of parties without other right or interest than such as is derived from the contract." On this ground the sale of land pendente lite, or by one out of possession is forbidden.' But that litigation may be in certain possible circumstances required to perfect the title will not make the deed void.* As between the parties such conveyances are generally held as estoppels."

11 Smedes & M. 98; Gilchrist v. Brande, 58 Wis. 184; Dickerson v. Pule, 4 Phila. 259; Quint v. Ophir Silver Min. Co. 4 Nev. 305; Coughlin v. New York Cent. & H. R. R. Co. 71 N. Y. 443; Marsh v. Holbrook, 3 Abb. App. Dec. 176; Hoffman v. Vallejo, 45 Cal. 564.

1Manning v. Sprague, 1 L. R. A. 516, 148 Mass. 18; Re Paschal, 77 U. S. 10 Wall. 483, 19 L. ed. 992; McPherson v. Cox, 96 U. S. 404, 417, 24 L. ed. 746, 750; Central R. & Bkg. Co. v. Pettus, 113 U. S. 116, 28 L. ed. 915. Hickey v. Baird, 9 Mich. 32; Floyd v. Goodwin, 8 Yerg. 484; Walker v. Cuthbert, 10 Ala. 213; Ross v. Chicago, R. I. & P. R. Co. 55 Iowa, 691. Swett v. Poor, 11 Mass. 553; German Mut. Ins. Co. v. Grim, 32 Ind. 249; Stotsenburg v. Marks, 79 Ind. 197; Justice v. Eddings, 75 N. C. 581; Lane v. Shears, 1 Wend. 433; West v. Raymond, 21 Ind. 305.

4Kellar v. Blanchard, 21 La. Ann 38. And see generally on the subject, Rowe v. Beckett, 30 Ind. 154; Jackson v. Andrews, 7 Wend. 152; Simpson v. Montgomery, 25 Ark. 365; Verdier v. Simons, 2 McCord, Eq. 385; Batterton v. Chiles, 12 B. Mon. 348.

Steeple v. Downing, 60 Ind. 478; McMahan v. Bowe, 114 Mass. 140; University of Vermont v. Joslyn, 21 Vt. 52; Livingston v. Proseus, 2 Hill, 526.

In Call v. Calef, 13 Met. 362, where two persons owned distinct rights to the exclusive use of a patent in two different places, near each other, it was held that the interest which each had in maintaining the value and profit of his particular right would justify him in aiding the other to prosecute a suit for the infringement of the exclusive right of the latter. So it has been held, and is manifest, that any citizen may lawfully contribute to the lawful expenses of any public criminal prosecution, and the act will not subject him to the charge of maintenance.'

It may safely be said that the whole doctrine of maintenance has been modified in recent times so as to confine it to strangers who, having no valuable interest in a suit, pragmatically interfere in it for the improper purpose of stirring up litigation and strife, and champerty, which is a species of maintenance attended with a bargain for a part or the whole of the thing in dispute, does not exist in the absence of this characteristic of maintenance. If the pecuniary interest of a person, even though he own no part of the immediate subject matter of the suit, be so connected with it collaterally in any way as to be diminished or increased in value by the result of such suit, there is no principle of public policy that ought to forbid such person from taking proper care that such interest shall be properly protected in the courts.

The forfeiture of a charter of a railroad, for example, on the line of which the owner of a factory or rolling mill may have his plant, might result in his financial ruin. Could it be said, in the light of modern views on this subject, that an agreement to aid in preventing the forfeiture would be champertous, and as such criminal, because the mill owner held no stock in the railroad company, nor was otherwise immediately interested in the corporate charter or property? Interference in lawsuits, it has been said, to savor of maintenance, must have some "tendency to pervert the course of justice;" or else, as said by Blackstone, "to pervert the remedial process of the law into an engine of oppression."

1Cor. v. Dupuy, Brightly, 44. See also Story, Cont. § 579; 2 Parsons, Cont. *765, 766; 2 Story, Eq. Jur. § 1050.

2 Stanley v. Jones, 7 Bing. 369.

34 Bl. Com. 135.