not promise to advance the expense he may bargain that if he does in fact pay it, he shall be entitled for his services and expenses to the contingent compensation of a specified fractional share of the amount recovered.1 11

§ 1713. Collateral effects of champertous contracts.

That champerty is no longer deemed so serious in effect as formerly, and probably also that the owner of the right of action is not regarded as in pari delicto with the attorney with whom he contracts, is shown by the fact that it is no defence to an action for the defendant to assert, allege or prove, that it is being prosecuted under a champertous agreement between the plaintiff and his attorney. 12 Nor is it a defence to a con

tract, not itself champertous, of an attorney to pay a portion of his fee to another, that the contract under which the fee was obtained was champertous. 13 Some decisions even go so far as to allow a recovery under a quantum meruit by an attorney who has rendered services under a champertous agreement.14 Such decisions certainly indicate a very lenient attitude towards champerty, for it is anomalous to allow recovery for the value of services or property furnished under an illegal contract.15 To allow such recovery is in effect treating champerty as making a contract merely unenforceable.

§ 1714. Agreement to encourage litigation.

Although maintenance in its simple form and even champerty is looked upon by the courts with less disfavor than formerly, schemes to promote litigation for the benefit of the promoter rather than for the benefit of the litigant are regarded as contrary to public policy, and will not be enforced. Contracts of "ambulance chasers" and others who make for themselves a business or profit by promoting litigation are unenforceable. 16 It is equally unlawful to bargain for reward for securing an attorney." But where a person is pecuniarily interested in the enforcement of a right of action belonging wholly or partly to another, he may lawfully undertake to pay the expenses of litigation and to share in the recovery. 18 No doubt relationship

18 Alpers v. Hunt, 86 Cal. 78, 24 Pac. 846, 9 L. R. A. 483, 21 Am. St. 17; Chreste v. Louisville Ry. Co., 167 Ky. 75, 180 S. W. 49, L. R. A. 1917 B. 1123, Ann. Cas. 1917 C. 867; Holland v. Sheehan, 108 Minn. 362, 122 N. W. 1, 23 L. R. A. (N. S.) 510; Anker v. Chicago &c. R. Co., 140 Minn. 63, 167 N. W. 278; Langdon v. Conlin, 67 Neb. 243, 93 N. W. 389, 60 L. R. A. 429, 108 Am. St. 543; In re Welch, 156 N. Y. App. Div. 470, 141 N. Y. S. 381 (statutory) Moore v. Hyde, 39 S. Dak. 196, 163 N. W. 707, 708; Ford v. Munroe (Tex. Civ. App.), 144 S. W. 349. A scheme of an attorney to work up a large number of cases against a railroad company for its failure to fence, and to take in payment for services a share of the proceeds of the litigation was held illegal in Gammons v. Johnson, 76 Minn. 76, 78 N. W. 1035, and Gammons v. Gulbranson, 78 Minn. 21, 80 N. W. 779, though a similar agreement with a single litigant would not have been held champertous. See also Hirschbach v. Ketchum, 5 N. Y. App. Div. 324, 39 N. Y. S. 291. Cf. Metropolitan Ins. Co. v. Fuller, 61 Conn. 252, 23 Atl. 193, 29 Am. St. Rep. 196; Vocke v. Peters, 58 Ill. App. 338; Wheeler v. Harrison, 94 Md. 147, 50

Atl. 523; Ellis v. Frawley, 165 Wis. 381, 161 N. W. 364.

17 Moore v. Hyde, 39 S. Dak. 196, 163 N. W. 707, 708. "The attorneys employed could not, without violating professional ethics and public policy, have contracted to pay plaintiff for his services in securing defendant as their client. . . . No more can plaintiff recover from defendant for services in bringing an attorney to him. The one case is as contrary to good morals and public policy as the other. The alleged contract is one to pay for the services of an intermeddler in litigation. It savors of the business of brokerage in the relation of attorney and client. It detracts from the essential dignity of the profession. It is the capitalization of the influence of a layman over a lawyer. The sanctioning of such a contract would tend to commercialize the practice of law and to make legitimate the business of furnishing lawyers to clients."

18 Mexican Nat. &c. Co. v. Frank, 154 Fed. 217; Davis v. A. H. Reid &c. Co., 195 Fed. 80, 115 C. C. A. 112; Coffman v. Louisville &c. R., 184 Ala. 474, 63 So. 527; Hotmire v. O'Brien, 44 Ind. App. 694, 90 N. E. 33; Breeden v. Frankfort &c. Ins. Co., 220 Mo. 327,

justifies supporting the expense of litigation,19 but, whether it affords support for a speculative bargain to share the proceeds, which would be unlawful except for the relationship, may be doubted, 194

§ 1715. Champertous assignments.

The early common law was very reluctant to permit the assignment of rights of action. Objection was indeed raised on the ground of maintenance to the assignment of any choses in action, 20 and for the same reason the law forbade the transfer of title to real estate which was in the possession of a third person and for which, therefore, an action must be brought. So far as concerns the assignment of ordinary choses in action, for any other consideration than a share of the proceeds, or to any one other than an attorney, the law has outgrown its former attitude, even though the claim is litigious.21 But the transfer of a claim in litigation or for the collection of which litigation is necessary, in consideration of a promised share of the proceeds of the litigation, is generally held invalid. 22 And a speculative purchase of a right of action by an attorney, especially if made from a client will be closely scrutinized, and certainly if unfair in its terms is invalid.23 The law concern

119 S. W. 576; Bigelow v. Old Dominion &c. Co., 74 N. J. Eq. 457, 71 Atl. 153; Smith v. Hartsell, 150 N. C. 71, 63 S. E. 172, 22 L. R. A. (N. S.) 203; Joseph Mazzini Soc. v. Corgiat, 63 Wash. 273, 115 Pac. 93.

19 Graham v. McReynolds, 90 Tenn. 673, 18 S. W. 272.

194 The interest of relationship was held sufficient in Anderson v. Anderson, 12 Ga. App. 706, 78 S. E. 271. But see Meloche v. Dequire, 34 Can. Sup. Ct. 24.

20 See supra, § 405.

21 Traer v. Clews, 115 U. S. 528, 29 L. Ed. 467, 6 S. Ct. Rep. 155; Edmunds v. Illinois Central R., 80 Fed. 78; Mud Valley Oil & Gas Co. v. Hitchcock, 40 Ind. App. 105, 81 N. E. 111; Rogers v. Hendrick, 85 Conn. 260, 271, 82 Atl. 586, 590; Clark v. Grosh, 81 N. Y. Misc. 40, 142 N. Y. S.

966; National Val. Bank v. Hancock, 100 Va. 101, 40 S. E. 611, 57 L. R. A. 728, 93 Am. St. Rep. 933; Weed v. Foster, 58 Wash. 675, 109 Pac. 123. For the limitations in Louisiana on the effect of a transfer of litigious claims, see Bluefields S. S. Co. v. Lala Ferreras &c. Co., 133 La. 424, 63 So. 96.

22 Glegg v. Bromley, [1912] 3 K. B. 474; Keiper v. Miller, 68 Fed. 627; The Clara A. McIntyre, 94 Fed. 552; Huber v. Johnson, 68 Minn. 74, 70 N. W. 806, 64 Am. St. Rep. 456; Hudson v. Sheafe (S. Dak.), 171 N. W. 320; Hamilton v. Gray, 67 Vt. 233, 31 Atl. 315, 48 Am. St. Rep. 811; Colville v. Small, 22 Ont. L. Rep. 33, 426, 19 Ann. Cas. 515, and see supra, § 1712. see Guy v. Churchill, 40 Ch. D. 481; Mud Valley Oil & Gas Co. v. Hitchcock, 40 Ind. App. 105, 81 N. E. 111.

But

23 In Sampliner v. Motion Picture

ing the right to make a conveyance of land held adversely varies widely at the present day in the different States. In many of them the old law forbidding such a conveyance has been abrogated but in others it still persists.24

§ 1716. Extra compensation for witnesses.

As it is the duty of a citizen, when required to do so, to testify in court concerning facts within his knowledge for the compensation allowed him by law, a contract to pay one who is amenable to process a further sum for his attendance as a witness is invalid, both on grounds of public policy and for lack of consideration.25 Expert witnesses, however, are held not to be subject to this rule, and a contract to pay for a statement by them of their opinions on the witness stand is upheld.26 It seems more obviously objectionable to bargain to pay a witness compensation contingent upon the success of the party to the litigation for whom the witness is expected to testify, than to contract to give additional compensation in any event, and the Patents Co., 243 Fed. 277, aff'd 255 Fed. 242, 168 C. C. A. 202 (see also General Film Co. v. Sampliner, 252 Fed. 443, 164 C. C. A. 367), the court held that while a claim for treble damages by a person injured by a violation of the Sherman Anti-Trust Law (Act July 2, 1890, c. 647, 26 Stat. 209) is assignable, yet where a lawyer, for services that he was willing to settle for $5,000 cash, took an assignment of a claim which he thought was worth at least $75,000, the transaction was champertous, and he could maintain no action on the assigned claim, as it was taken for purposes of speculation. Cf. Rogers v. Hendrick, 85 Conn. 260, 271, 82 Atl. 586, 590.

24 See note to Huston v. Scott, 35 L. R. A. (N. S.) 729; Second American Dec. Digest, Vol. 4, p. 856. So in Alabama an attempted transfer of chattel property adversely held is invalid. Pope v. Union Warehouse Co., 195 Ala. 309, 70 So. 159.

25 Willis v. Peckham, 1 Brod. & B. 515; Dawkins v. Gill, 10 Ala. 206;

Dodge v. Stiles, 26 Conn. 463; Wright v. Somers, 125 Ill. App. 256; Haines v. Lewis, 54 Iowa, 301, 6 N. W. 495, 37 Am. Rep. 202; Hagan v. Wellington, 7 Kans. App. 74, 52 Pac. 909; Clifford v. Hughes, 139 N. Y.App. Div. 730, 124 N. Y. S. 478; Smith v. Hartsell, 150 N. C. 71, 63 S. E. 172, 22 L. R. A. (N. S.) 203; Ramschasel's Est., 24 Pa. Super. 262.

26 Severn v. Olive, 3 Br. & Bing. 72; Yeatman v. Dempsey, 7 C. B. (N. S.) 628; Lincoln Mountain Gold Min. Co. v. Williams, 37 Colo. 193, 85 Pac. 844; Lewis v. Blye, 79 Ill. App. 256; Johnson v. Pietsch, 94 Ill. App. 459; Barrus v. Phaneuf, 166 Mass. 123, 44 N. E. 141, 32 L. R. A. 619; People v. Jefferson County, 35 N. Y. App. Div. 239, 54 N. Y. S. 782; Hough v. State. 68 N. Y. Misc. 26, 124 N. H. S. 878, In many of these cases the expert was to render services in examining the facts, or otherwise informing himself prior to the trial. Cf. Burnett v. Freeman, 125 Mo. App. 683, 103 S. W. 121, 134 Mo. App. 709, 115 S. W. 488; Walker v. Cook, 33 Ill. App. 561.