of enabling a person to recover damages in an action, and to exert influence for procuring evidence to substantiate the claim upon condition of receiving a portion of the sum recovered, was held to be illegal; it was argued on the one side that the law of champerty was practically obsolete, having arisen out of a state of society wholly different from the present, and that the agreement was rather in furtherance than in disturbance of right, and on the other side that to uphold such an engagement would be productive of the worst consequences, and joint stock companies might be formed to sue on speculation, and support claims by suborned testimony; the judges thought it was a clear case of champerty, with the additional evil of a direct tendency to pervert the course of justice. Fine distinctions have been drawn in other cases as to agreements to furnish evidence, which it is not necessary to go into here.

If these cases are instances of the evils which are to be avoided, the cases now to follow seem to be on the other side of the boundary line which English legislation should endeavour if possible to draw. In Strange v. Brennan, before Shadwell V.C., in 1846 (15 Simon, 346), a lady resident in Ireland, who was entitled to a fund in the English Court of Chancery, applied to several Irish solicitors who all declined to undertake the business on the ground of some difficulty in getting the evidence to establish her right to some letters of administration which it was necessary to take out in order to complete her title, and of the expense which would be incurred in taking them out; she however at length induced the plaintiff Strange, a solicitor in Ireland but not in England, to undertake the matter for a commission of 10 per cent. on the sum to be recovered, together with reimbursement of the costs he should pay to a London solicitor. The fund was actually recovered and transferred to the defendant, and the plaintiff now sued on the agreement. The ViceChancellor allowed a demurrer to the bill on the short ground that 'the policy of the law is as much opposed to this case as it would have been if Strange himself had been the solicitor employed to do the business.' In this case there was no suggestion of undue influence or unfairness, or of any tendency to pervert the course of justice; and it seems probable that but for the assistance of the plaintiff on the faith of the agreement, the defendant would never have recovered the fund; what is there contrary to justice and good policy in such an arrangement?

Again in Earle v. Hopwood (30 L. J. C. P. 217), before the Court of Common Pleas in 1861, the declaration stated (in effect) that the defendant being desirous of taking legal proceedings to establish his title to some property by disputing the validity of a will, and being unable to procure the necessary money, requested the plaintiff

to advance it and to act as his attorney in the matter, and it was agreed that in consideration that the plaintiff would advance all sums of money and incur all pecuniary liabilities which should be required to carry on the proceedings, and devote his utmost skill, &c., the defendant, if the proceedings led to his recovery of the property (being unable to pay him in case of failure), would pay to the plaintiff in addition to his legal costs and charges a sum of money according to the interest and benefit to the defendant from possession of the estates and property, and sufficient to compensate and reward the plaintiff,' &c.; that the plaintiff did accordingly advance large sums, &c., so that in case of failure he would have lost £5000 beside his costs; and the defendant did in consequence of the proceedings recover the property, which was worth £8000 a year; and the plaintiff claimed a reward of £30,000. On a demurrer, judgment was given for the defendant on the ground of champerty, the contract being within the same principle as if it had been directly for a share in the property. There is nothing there to show that it was anything but a perfectly innocent and proper case of champerty.

Hilton v. Woods, before Malins V.C. in 1867 (4 Eq. 432), was a suit for establishing the plaintiff's title to some coal mines. The plaintiff was first informed of his rights by a solicitor, and was at first not willing to insist upon them, but the solicitor induced him to act on a guarantee against costs, in consideration of a share of the property when recovered. It was held of course that such an agreement did not affect the plaintiff's right, but the Vice-Chancellor considered that the agreement was clearly void on the ground of champerty. There was here no perversion of right or justice, but the plaintiff was certainly instigated by the interference of a third party to claim rights which otherwise he would have allowed to sleep; and it is therefore champerty of a less innocent description than in Strange v. Brennan and Earle v. Hopwood. The case of Hutley v. Hutley (L. R. 8 Q. B. 112) should be referred to as clearly marking the distinction between 'gratuitous' maintenance and champerty; there the defendant, the heir-at-law of a testator, agreed with the plaintiff, his cousin, to share half of any property coming to him, in consideration of the plaintiff taking necessary steps to contest the will, and advancing money and obtaining evidence for the purpose and instructing an attorney. The action was brought on this agreement, which was held to be void on the ground of champerty; it was attempted to support the agreement on the grounds of relationship and of a supposed interest, the plaintiff believing that the avoidance of the will would let in an earlier will under which he was entitled. The Court held, first,

that it was clear champerty, the agreement to obtain evidence. being especially mischievous; and secondly, that whatever might be the case as to maintenance (i.e. gratuitous maintenance), neither blood-relationship nor a supposed interest made any difference in the case of champerty (though the latter might be a defence in criminal proceedings)- no amount of collateral interest will justify an agreement to share in the property to be recovered.' But in Guy v. Churchill (40 Ch. D. 481), Chitty J. considered that an interest sufficient to justify maintenance would also justify champerty, a ground of decision difficult to reconcile with Hutley v. Hutley.

In Grell v. Lery (16 C. B. N. S. 73), before the Court of Common Pleas in 1864, an agreement by an attorney to sue for a debt, receiving by way of recompense a moiety of the amount to be recovered, was held void for champerty, its illegality being hardly questioned, the only substantial question being whether it was saved by having been entered into in France, where it was assumed that such an agreement would be valid.

The agreement in that case is treated in the judgments as an infringement of the law regulating the rights and duties of attorneys and clients, an aspect of the question which is also shown in the much earlier case of Re Masters (4 Dowl. P. C. 18) in 1835 before the Court of King's Bench where it was held to be no answer to an application to tax an attorney's bill that an agreement had been made that the attorney should receive one-half of the proceeds of a suit carried on at the instance of the client.

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In the case of In Re Attorneys and Solicitors Act, 1870, before Sir G. Jessel in I Ch. D. 573 (1875), there was an agreement by solicitors to investigate and assert the rights of their clients in consideration of receiving 10 per cent. of the net value of the property recovered in addition to their ordinary costs and a charge on the property for the amount; if no property was recovered they were only to receive costs out of pocket with interest at 5 per cent.; the agreement came in question on taxation, the solicitors, in order to make sure of their position, having submitted the matter to the Taxing Master before commencing proceedings. Section 4 of that Act allows of special agreements between solicitors and clients as to remuneration either by a gross sum, or by commission or percentage, or by salary or otherwise, if fair and reasonable; but by sec. 11, which is expressly aimed at champerty, 'Nothing in this Act contained shall be construed to give validity to any purchase by an attorney or solicitor of the interest, or any part of the interest, of his client in any suit action or other contentious proceeding to be brought or maintained, or to give validity to any agreement by which an attorney or solicitor retained or employed to prosecute any suit or action,

stipulates for payment only in the event of success in such suit action or proceeding.' Sir G. Jessel expressed no opinion as to what was 'fair and reasonable' because nothing had yet become payable under the agreement, but for the guidance of the parties he said that the agreement was pure champerty, as it gave to the solicitor, in the event of success, what was equivalent to a tenth part of the property to be recovered, and was therefore within s. 11. In the case of solicitors therefore at all events, champerty per se, however reasonable and proper, is sufficient to avoid an agreement.

One other recent case is worth mentioning. In Bell v. Warwick in L. J. Q. B. 382 (1881) there was an agreement in the following words: 'In consideration of your advancing my solicitors £30 I agree to pay you one-third of the amount of any damages recovered in my action now pending against the London and North Western Railway Company;' in case of failure, there was to be no claim for the £30. Although there was no undertaking to carry on the suit or indemnify for costs, and no evidence of any improper motive, this was held void for champerty, Grove J. remarking, 'It is not for me to express any opinion as to whether it is desirable to keep up the offence of champerty; it suffices that the law still exists.' James v. Kerr (40 Ch. D. 449) is a still more recent case of champerty before Kay J., which calls for no special remark.

It is clear from these cases that, notwithstanding the above-cited passage from the judgment of the Privy Council in the case in 8 Moore, it is not necessary in order to make an agreement void for champerty or for savouring of champerty that it should be in fact against good policy and justice,' nor that it should be 'something tending to promote unnecessary litigation,' unless the bare fact of champerty raises some kind of legal presumption to that effect. For an agreement such as that in Strange v. Brennan is surely not against good policy and justice but in furtherance of it; it is not to be expected that a solicitor will readily undertake to prosecute a claim involving considerable outlay and, however honest, some risk of failure, when his client is unable to provide money, merely on the chance of getting his ordinary costs in case of success; there is no reward commensurate with the risk incurred.

It is remarkable that we should be able to turn to the law of British India for a recognition of the principle here contended for. For it is in British India that the evils of improper maintenance and champerty have been most rife. Sir J. F. Stephen in his History of the Criminal Law,' under the head of 'Maintenance,' says that there the invariable result of the establishment of a government strong enough to put an end to open violence was to produce an outbreak of litigation and a regular trade in suits.'

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Speculation in law proceedings,' says Mr. Justice Phear in a reported Indian case, 'has assumed the dimensions and respectability of an ordinary trade; a large class in the community fattens and grows rich on the spoils of needy suitors; and litigation is maintained without reference to the wishes or interests of the nominal parties: it is,' he adds, 'a great game of speculation' which 'takes away all sincerity and truth from the solemn administration of the law. Mr. Justice Holloway in another case says that maintenance is the favourite instrument for revenging private quarrels ; 'a suit against a man's enemy is commenced in the name of another, promoted by the money of the enemy, and sustained by the perjury which he suborns. . . . At the elbow of every man with a grievance, real or imaginary, is one of these unclean animals busily engaged in fanning into a law suit every trifling difference. . . . Sometimes the claimant is taken up either by an individual speculator or by a joint stock company. Having nothing, he is prepared to promise everything. The suit is promoted with their money, and victory leaves the victor and the vanquished together prostrate at the feet of these unholy speculators. The nominal plaintiff is not the "poor man" of Lord Abinger, but the poor neighbour of Quirk, Gammon, and Snap. . . . On the purity of the administration of justice the effect is still more directly pernicious. The unlimited supply of evidence to support any claim true or false, renders it easy for these speculators to produce for the support of any claim, with equal ease whether it be true or false, a body of people called skilled witnesses.' If innocent champerty cannot be permitted without evils of this kind, without in fact letting loose upon society the breed bates and barrators' of Lord Justice Knight-Bruce, it would certainly be better to let things remain as they are. But it must be remembered, in the first place, that the evils were, in the words of Holloway J., 'aggravated by the character of the people to an extent of which our own country cannot furnish and never could have furnished an example;' and in the second place Indian judges have not shrunk from the problem of distinguishing between champerty which is and which is not against good policy and justice. After some wavering they have clearly recognised the distinction between the English law of champerty-an absolute and artificial rule founded on the early statutes-and the Indian law, which makes it a question of good policy and justice in each case. This clearly appears in the judgment of the Privy Council in Chedambara Chetty v. Renga Krishna (L. R. 1 Ind. App. 241), and is well illustrated by the case before the same tribunal of Ram Coomar Coondoo v. Chunder Canto Mookerjee (L. R. 2 App. Cas. 186), where the question of champerty was not raised indirectly on the validity of