v. Radcliffe (a), unanimous judgments in both the Q. B. and the Ex. Ch. added the qualification that a conveyance by way of security for past expenses is nevertheless good. The Court of Exchequer Chamber showed a decided opinion that Simpson v. Lamb had gone too far, but without positively disapproving it. In Knight v. Bowyer, again, Turner, L. J. said "I am aware of no rule of law which prevents an attorney from purchasing what anybody else is at liberty to purchase, subject of course, if he purchases from a client, to the consequences of that relation" (b). But the case before the Court was not the purchase by a solicitor from his client of the subjectmatter of a suit in which he was solicitor; Simpson v. Lamb, therefore, was only treated as distinguishable (b). The case must at present be considered a subsisting authority, but anomalous and not likely to be at all extended (c). But the chase of subject 7. As to the purchase of things in litigation in general, (?) Purthe authorities cannot all be reconciled in detail. distinction which runs through them all is to this effect. matter of litigation The question in every case is whether the real object be not in itself to acquire an interest in property for the purchaser, or unlawful. merely to speculate in litigation on the account either of the vendor and purchaser jointly or of the purchaser alone. 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 an interest merely for the purpose of litigation. other words, the sale of an interest to which a right to is incident is good (d); but the sale of a mere right to is bad (e). A man who has conveyed property by a deed voidable mere right (a) E. B. & E. 806, 28 L. J. Q. B. 32, 29 ib. 128. (b) 2 De G. & J. at p. 445. (c) Cp. however the Austrian Civil Code, which makes such agreements void (§ 879). In But is unsue the real sue intention lawful if (d) Dickinson v. Burrell, 1 Eq. 337, 342. (e) Ib.; Prosser v. Edmonds, 1 Y. & C. Ex. 481 (the main part of Lord Abinger's judgment is extracted in a note to Story, Eq. Jur. § 1040%). is to acquire a to sue. Purchase of shares in company in equity retains an interest not only transmissible by descent or devise, but disposable inter vivos without such disposition being champerty. But "the right to complain of a fraud is not a marketable commodity," and an agreement whose real object is the acquisition of such a right cannot be enforced (a). In like manner, a creditor of a company may well assign his debt, but he cannot sell as incident to it the right to proceed with a winding-up petition (b). The payment of the price being made contingent on the recovery of the property is probably under any circumstances a sufficient, but is by no means a necessary, condition of the Court being satisfied that the real object is to traffic in litigation. If the purchase is made while a suit is actually pending, the circumstance of the purchaser indemnifying the vendor against costs may be material, but is not alone enough to show that the bargain is in truth for maintenance (c). But the only view which on the whole seems tenable is that it is a question of the real intention to be collected from the facts of each case, for arriving at which few or no positive rules can be laid down. There is no champerty in an agreement to enable the bona fide purchaser of an estate to recover for rent due or injuries done to it previously to the purchase (d). It has been decided in several modern cases that the purchase of shares in a company for the purpose of inwith inten- stituting a suit at one's own risk to restrain the governing company body of the company from acts unwarranted by its conor directors stitution cannot be impeached as savouring of mainte tion to sne (a) Prosser v. Edmonds; De Hoghton v. Money, 2 Ch. 164, 169. Cp. Hill v. Boyle, 4 Eq. 260, and qu. whether the right to cut down an absolute conveyance to a mortgage be saleable: Seear v. Lawson, 15 Ch. D. 426. (b) Paris Skating Rink Co. (C.A.), 5 Ch. D. 959. (c) Harrington v. Long, 2 M. & K. 590, as corrected by Knight v. Bowyer, supra, and see Hunter v. Daniel, 4 Ha. at p. 430. But the true ground of the case seems the same as in Prosser v. Edmonds and De Hoghton v. Money, namely that the real object was to give the purchaser a locus standi to set aside a deed for fraud. (d) Per Cur. (Ex. Ch.), Williams v. Protheroe, 5 Bing. 309, 314. risk not nance. nance (a). It is worth while to note that it was recognized at one's own as long ago as 21 Ed. 3 that a purchase of property pend- mainteing a suit affecting the title to it is not of itself champerty: "If pending a real action a stranger purchases the land of tenant in fee for good consideration and not to maintain the plea, this is no champerty" (b). 8, c. 9. bargain for The statute 32 H. 8, c. 9, "Against maintenance and Stat. 32 H. embracery, buying of titles, &c.," deserves special mention. None shall After reciting the mischiefs of "maintenance embracery buy, sell, or champerty subornation of witnesses sinister labour buying any right of titles and pretensed rights of persons not being in possession," and confirming all existing statutes against seller hath maintenance, it enacts that: in lands unless the been in possession or taken year. "No person or persons, of what estate degree or condition so ever the profits he or they be, shall from henceforth bargain buy or sell, or by any for one ways or means obtain get or have, any pretensed rights or titles, or take promise grant or covenant to have any right or title of any person or persons in or to any manors lands tenements or hereditaments, but if such person or persons which shall so bargain sell give grant covenant or promise the same their antecessors or they by whom he or they claim the same have been in possession of the same or of the reversion or remainder thereof or taken the rents or profits thereof by the space of one whole year next before the said bargain covenant grant or promise made." and saving. The penalty is forfeiture of the whole value of the lands Penalty (s. 2), saving the right of persons in lawful possession to buy in adverse claims (s. 4). There is no express saving of grants or leases by persons in actual possession who have been so for less than a year: but either the condition as to time applies only to receipt of rents or profits without actual possession, or at all events the intention not to touch the acts of owners in possession is obvious (c). This, like the other statutes against maintenance and Dealings champerty, is said to be in affirmance of the common within the (a) See Bloxam v. Metrop. Ry. Co., 3 Ch. at p. 353. (b) 2 Ro. Ab. 113 B.; Y. B. 21 E. 3. 10, pl. 33 [cited as 52 in Rolle]; but in 50 Ass. 323, pl. 3, the general opinion of the Serjeants is contra. (c) By Mountague, C. J. Partridge held statute. Agreement to recover and divide property. Sale of term by adminis trator out of possession. Secus sale of nonlitigious expectancy. law (a). It is formed on the view that possession should remain undisturbed. Dealings with property by a person out of possession tend to disturb the actual possession to the injury of the public at large" (b). It is immaterial whether the vendor out of possession has in truth a good title or not (a). An agreement between two persons out of possession of lands, and both claiming title in them, to recover and share the lands, is contrary to the policy of this statute, if not champerty at common law: therefore where co-plaintiffs had in fact conflicting interests, and it was sought to avoid the resulting difficulty as to the frame of the suit by stating an agreement to divide the property in suit between them, this device (which now would in any case be disallowed on more general grounds) (c) was unavailing; for such an agreement, had it really existed, would have been unlawful, and would have subjected the parties to the penalties of the statute (d). Where after the death of a lessee a stranger had entered, and remained many years in possession, a sale of the term by the administrator of the lessee was held void as contrary to the statute, although in terms it only forbids sales of pretended rights, &c., under penalties, without expressly making them void (e). But the sale of a contingent right or a mere expectancy, not being in the nature of a claim adverse to any existing possession, is not forbidden. The sale of a man's possible interest as the devisee of a living owner, on the terms that he shall return the purchasemoney if he does not become the devisce, is not bad either at common law as creating an unlawful interest in the present owner's death, or as a bargain for a pretended title under the statute (f). By the civil law, however, such contracts are regarded as contra bonos mores. 'Huiusmodi (a) See note (c) p. 317. (b) Per Lord Redesdale, Cholmondeley v. Clinton, 4 Bligh, at p. 75. (c) See Cooke v. Cooke, 4 D. J. S. 704; Pryse v. Pryse, 15 Eq. 86. (d) Cholmondeley v. Clinton, 4 Bligh 1, 43, 82, per Lord Eldon and Lord Redesdale. (e) Doe d. Williams v. Evans, 1 C. B. 717, 14 L. J. C. P. 237. Cp. above as to the construction of prohibitory statutes in general, p. 270. (f) Cook v. Field, 15 Q. B. 460, 19 L. J. Q. B. 441. pactiones odiosae videntur et plenae tristissimi et periculosi eventus," we read in a rescript of Justinian on an agreement between expectant co-heirs as to the disposal of the inheritance. The rescript goes on, quite in the spirit of our own statute, to forbid in general terms all dealings "in alienis rebus contra domini voluntatem" (C. 2. 3. de pactis, 30) (a). within the Proceedings in lunacy seem not to be within the general Proceed ings in rules as to champerty, as they are not analogous to ordinary lunacy not litigation, and their object is the protection of the person rules and property of the lunatic, which is in itself to be against encouraged; and "this object would in many cases be impeded rather than promoted by holding that all agreements relative to the costs of the proceedings or the ultimate division of the property were void ” (b). cham perty. nance in As to maintenance in general, maintenance in the strict Mainteand proper sense is understood to mean only the mainte- general. nance of an existing suit, not procuring the commencement of a new one. But the distinction is in practice immaterial even in the criminal law (c). It is of more importance that a transaction cannot be void for champerty or maintenance unless it be "something against good policy and justice, something tending to promote unnecessary litigation, something that in a legal sense is immoral, and to the constitution of which a bad motive in the same sense is necessary" (d). Therefore, for example, a transaction can (a) By the French Code Civil, art. 1600 (followed by the Italian Code, art. 1460). "On ne peut vendre la succession d'une personne vivante, même de son consentement:" cp. 791, 1130. The Austrian Code (§ 879) also expressly forbids the alienation of an expected inheritance or legacy. In Roman law the rule that the inheritance of a living person could not be sold is put only on the technical ground "quia in rerum natura non sit quod venierit" (D. 18. 4. de hered. vel actione vendita, 1, and see eod. tit. 7-11). (b) Persse v. Persse, 7 Cl. & F. (d) Fischer v. Kamala Naicker, 8 |