34

35

36

states, statutes have been passed defining and punishing abortion; and some of them do not require that the child shall have quickened. Many of the statutes call the crime "manslaughter" in derogation of the common law. There are also statutes in some of the states making it a crime to have possession of, or to sell or give away, instruments or drugs used for the purpose of committing abortions, and statutes declaring it to be abortion to advise a woman to take medicine to procure a miscarriage. The consent of the mother is no defense.38 Indeed, a woman is guilty of the crime if she commits the abortion on herself. She is not, however, regarded strictly as an accomplice of a person who procures her miscarriage, but is looked upon rather as the victim. If it is necessary to destroy a child in its mother's womb to save the mother's life, it may be done on the

37

84 People v. Stockham, 1 Parker, Cr. R. (N. Y.) 424; Com. v. Wood, 11 Gray (Mass.) 86; State v. Fitzgerald, 49 Iowa, 260, 31 Am. Rep. 148; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; People v. Olm stead, 30 Mich. 431; Slattery v. People, 76 Ill. 217; Scott v. People, 141 Ill. 195, 30 N. E. 329; Lamb v. State, 67 Md. 524, 10 Atl. 208; Navarro v. State, 24 Tex. App. 378, 6 S. W. 542; Hatchard v. State, 79 Wis. 357, 48 N. W. 380; Holland v. State, 131 Ind. 568, 31 N. E. 359; Williams v. State (Tex. App.) 19 S. W. 897; Com. v. Surles, 165 Mass. 59, 42 N. E. 502. On a prosecution for attempt to commit an abortion by administering a drug, it was held no defense that the drug turned out to be harmless. State v. Fitzgerald, 49 Iowa, 260, 31 Am. Rep. 148. In prosecution for act done with intent to procure miscarriage immaterial whether woman was enceinte. State, 40 Fla. 527, 25 South. 144.

Eggart v.

35 A statute making administration of drugs, etc., to a pregnant woman for purpose of procuring abortion manslaughter in second degree held invalid, as manslaughter cannot exist without death of woman or child. State v. Young, 55 Kan. 349, 40 Pac. 659.

36 State v. Forsythe, 78 Iowa, 595, 43 N. W. 548.

37 People v. Phelps, 133 N. Y. 267, 30 N. E. 1012.

381 Whart. Cr. Law, § 594.

39 1 Whart. Cr. Law, § 593; Com. v. Follansbee, 155 Mass. 274, 29

N. E. 471.

ground of the necessity. This necessity is also recognized by the statutes.40 As we have already seen, it is either murder or manslaughter if the mother is killed in attempting to procure an abortion; 11 and it is murder if the child is born alive, and dies from wounds received while in the womb, or dies because prematurely born by reason of the drug administered.* In some of the states, statutes have been enacted making it a crime to conceal the death of a bastard child.

42

40 Hatchard v. State, 79 Wis. 357, 48 N. W. 380; People v. McGonegal, 62 Hun, 622, 17 N. Y. Supp. 147. Indictment must allege that miscarriage was not necessary to save life. State v. Stevenson, 68 Vt. 529, 35 Atl. 470; State v. Moothart, 109 Iowa, 130, 80 N. W. 301. Presumption that miscarriage is not necessary is sufficient to prove negative averment in absence of evidence. State v. Lee, 69 Conn. 186, 37 Atl. 75. Burden to negative exception on state. State v. Aiken, 109 Iowa, 643, 80 N. W. 1073.

41 Ante, p. 213, note 59; p. 231, note 36. 42 Ante, p. 167.

132. Common barratry is the offense of frequently exciting and stirring up suits and quarrels either at law or

otherwise.1

133. Maintenance is the officious intermeddling in a suit that in no way belongs to one by maintaining or

assisting either party with money or otherwise to prosecute or defend it.2

134. Champerty is a bargain with a plaintiff or defendant to divide the land or other matter sued for be tween them if they prevail at law, whereupon the champertor is to carry on the party's suit at his

own expense.

14 Bl. Comm. 134; 1 Hawk. P. C. 243; Com. v. Davis, 11 Pick. (Mass.) 433.

24 Bl. Comm. 134; 1 Hawk. P. C. 249.

34 Bl. Comm. 135; Hawk. P. C. 257. Though this is Blackstone's definition, it has been said that the champertor need not carry on the suit at his own expense; that it may be where an attorney

These three offenses have some features in common, and are all old common-law crimes, because encouragement of strife and litigation is injurious to the public interests. An example of champerty is where an attorney agrees to carry on a suit, and take as compensation a part of what he may recover, or where one purchases and takes an assignment of a chose in action or right to sue in equity," or purchases land or personalty held adversely by another than the vendor at the time of the purchase. A person who is in no way concerned in a suit is as a rule guilty of maintenance if he bears the expense or retains counsel for a party, but it is otherwise if he has an interest, as that of reversioner, or where he is related to the party he assists. A landlord may assist his tenant, or a master his servant, and one may

merely agrees to conduct the suit for a contingent compensation. Lathrop v. President, etc., of Amherst Bank, 9 Metc. (Mass.) 489. But see, contra, Aultman v. Waddle, 40 Kan. 195, 19 Pac. 730; Phillips v. South Park Com'rs, 119 Ill. 626, 10 N. E. 230.

4 Lathrop v. President, etc., of Amherst Bank, 9 Metc. (Mass.) 489; Lancy v. Havender, 146 Mass. 615, 16 N. E. 464.

5 Illinois Land & Loan Co. v. Speyer, 138 Ill. 137, 27 N. E. 931. The purchase must be for the purpose of suing thereon. West v. Kurtz (Com. Pl.) 2 N. Y. Supp. 110, and 3 N. Y. Supp. 14; Burnham v. Heselton, 84 Me. 578, 24 Atl. 955.

Combs v. McQuinn (Ky.)

• Bentley v. Childers (Ky.) 7 S. W. 628; 9 S. W. 495; Nelson v. Brush, 22 Fla. 374; Bleidorn v. Pilot Mountain Coal & Min. Co., 89 Tenn. 166, 204, 15 S. W. 737; Smith v. Price (Ky.) 7 S. W. 918. Conveyance under a contract made before land was held adversely is not champertous. Greer v. Wintersmith, 85 Ky. 516, 4 S. W. 232, 7 Am. St. Rep. 613; Thacker v. Belcher (Ky.) 11 S. W. 3. Does not apply in some states. In re Murray's Estate, 13 Pa. Co. Ct. R. 70. Sale of personalty in adverse possession of another is champertous. Erickson v. Lyon, 26 Ill. App. 17; Foy v. Cochran, 88 Ala. 353, 6 South. 685.

7 Lewis v. Broun, 36 W. Va. 1, 14 S. E. 444; Goodspeed v. Fuller, 46 Me. 141, 71 Am. Dec. 572; Davies v. Stowell, 78 Wis. 334, 47 N. W. 370, 10 L. R. A. 190; Williamson v. Sammons, 34 Ala. 691; Graham v. McReynolds, 90 Tenn. 673, 18 S. W. 272.

CLARK CR.L.3D ED.-28

assist a poor man to carry on his suit. A single act is not sufficient to constitute the crime of common barratry, but there must be a series of acts, not less than three, the essence of the offense being that the offender shall be a "common" barrator. It is no crime for one to frequently bring unsuccessful actions in his own right, except probably where he brings ungrounded suits, merely for the purpose of annoying his adversary.10 A justice of the peace is guilty of this crime if he stirs up criminal prosecutions to be brought before himself, as magistrate, for the purpose of obtaining fees.11 There is no certainty as to the extent to which these offenses as common-law crimes would be recognized in this country. Very many of the courts have refused to recognize the crimes of champerty and maintenance, or have materially restricted the application of the old common-law doctrine.12

8 4 Bl. Comm. 135.

• Com. v. Davis, 11 Pick. (Mass.) 432; Com. v. McCulloch, 15 Mass. 227.

10 Com. v. McCulloch, 15 Mass. 227.

11 State v. Chitty, 1 Bailey (S. C.) 379.

12 Sherley v. Riggs, 11 Humph. (Tenn.) 53: Danforth v. Streeter, 28 Vt. 490; Manning v. Sprague, 148 Mass. 18, 18 N. E. 673, 1 L. R. A. 516, 12 Am. St. Rep. 508; Sedgwick v. Stanton, 18 Barb. (N. Y.) 473, affirmed in 14 N. Y. 289; Blaisdell v. Ahern, 144 Mass. 393, 11 N. E. 681, 59 Am. Rep. 99; Winslow v. Central Iowa Ry. Co., 71 Iowa, 197, 32 N. W. 330; Dahms v. Sears, 13 Or. 47, 11 Pac. 891; Dunne v. Herrick, 37 Ill. App. 180; Lewis v. Broun, 36 W. Va. 1, 14 S. E. 444; Brown v. Bigne, 21 Or. 260, 28 Pac. 11, 14 L. R. A. 745, 28 Am. St. Rep. 752. But see Key v. Vattier, 1 Ham. (1 Ohio) 132. Common law is virtually repealed by statute in many states. Wildey v. Crane, 63 Mich. 720, 30 N. W. 327; Bundy v. Newton, 65 Hun, 619, 19 N. Y. Supp. 734; Byrne v. Kansas City, Ft. S. & M. R. Co. (C. C.)

55 Fed. 44.