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 such is the real object. 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 (a). 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 (b). of shares in company tion to sue company It has been decided in several modern cases that the purchase Purchase of shares in a company for the purpose of instituting a suit at one's own risk to restrain the governing body of the company with intenfrom acts unwarranted by its constitution cannot be impeached as savouring of maintenance (c). It is worth while to note that ordirectors it was recognized as long ago as 21 Ed. 3 that a purchase of pro- risk not perty pending a suit affecting the title to it is not of itself maintechamperty: "If pending a real action a stranger purchases the ance. land of tenant in fee for good consideration and not to maintain the plea, this is no champerty" (7). at one's own 8, c. 9. The statute 32 H. 8, c. 9, "Against maintenance and embra- Stat. 32 H. cery, buying of titles &c.," deserves special mention. After reciting None the mischiefs of "maintenance embracery champerty suborna- shall buy, tion of witnesses sinister labour buying of titles and pretensed gain for rights of persons not being in possession," and confirming all any right existing statutes against maintenance, it enacts that: "No person or persons, of what estate degree or condition so ever he or they be, shall from henceforth bargain buy or sell, or by any (a) 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. (b) Per Cur. (Ex. Ch.), Williams (d) 2 Ro. Ab. 113B.; Y. B. 21 E. sell, or bai. in lands unless the seller hath been in or taken the profits for one year. possession 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 "— Penalty and saving. Dealings held divide pro perty. on pain of forfeiture of the whole value of the lands (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 (a). This, like the other statutes against maintenance and chamwithin the perty, is said to be in affirmance of the common law («). It "is statute. formed on the view that possession should remain undisturbed. Agreement to re. Dealings with property by a person out of possession tend to cover and 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 (e)) 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 («). (a) By Mountague, C. J. Partridge v. Strange, Plowd. 88, cited in Doe d. Williams v. Ecans, 1 C. B. 717; ib. 89. (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. adminis sion. of non litigious Where after the death of a lessee a stranger had entered, and Sale of remained many years in possession, a sale of the term by the term by administrator of the lessee was held void as contrary to the sta- trator out tute, although in terms it only forbids sales of pretended rights of posses&c. under penalties, without expressly making them void (a). But the sale of a contingent right or a mere expectancy, not Secus sale 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 expecdevisee of a living owner, on the terms that he shall return the tancy. purchase-money if he does not become the devisee, 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 (). By the civil law, however, such contracts are regarded as contra bonos mores. "Huiusmodi 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) (c). rules Proceedings in lunacy seem not to be within the general rules Proceedings in as to champerty, as they are not analogous to ordinary litigation, lunacy not and their object is the protection of the person and property of within the the lunatic, which is in itself to be encouraged; and "this object would in many cases be impeded rather than promoted by hold- chaming that all agreements relative to the costs of the proceedings or the ultimate division of the property were void” («?). perty. pro- Mainte As to maintenance in general, maintenance in the strict and per sense is understood to mean only the maintenance of an existing suit, not procuring the commencement of a new one. But the (a) 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. 236. (b) Cook v. Field, 15 Q. B. 460, 19 L. J. Q. B. 441. (c) 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 (d) Persse v. Persse, 7 Cl. & F. nance in general. Certain relations will justify distinction is in practice immaterial even in the criminal law («). 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" (b). Therefore, for example, a transaction cannot be bad for maintenance whose object is to enable a principal or other person really interested to assert his rights in his own name (¿). Nor is it maintenance for several persons to agree to defend a suit in the result of which they have, or reasonably believe they have a common interest (c). But a bargain to have a share of property to be recovered in a suit in consideration of maintaining the suit by the supply of money and evidence is not saved from being champerty by the party's having a mere collateral interest in the result of the suit (d). Lineal kinship in the first degree or apparent heirship, and to a certain extent, it seems, any degree of kindred or affinity, or the relation of master and servant, may justify acts which as between strangers would be maintenance: but blood relationship champerty will not justify champerty (e). maintenance but not c. Public policy as to legal duties of individuals. c. As to matters touching legal duties of individuals in the performance of which the public have an interest. Certain kinds of agreements are or have been considered unlawful and void as providing for or tending to the omission of duties which are indeed duties towards individuals, but such that their performance is of public importance. To this head must be referred the rule of law that a father cannot by contract ments as to deprive himself of the right to the custody of his children (ƒ), custody or education or of his discretion as to their education. He "cannot bind of children. himself conclusively by contract to exercise in all events in a particular way rights which the law gives him for the benefit A gree (a) See Wood v. Downes, 18 Ves. at p. 125. (b) Fischer v. Kamala Naicker, 8 Moo. Ind. App. 170, 187. (c) Findon v. Parker, 11 M. & W. 675. Cp. 2 Ro. Ab. 115 G. (d) Hutley v. Hutley, L. R. 8 Q. B. 112. (e) Hutley v. Hutley, L. R. 8 Q. B. 112. See 2 Ro. Ab. 115-116. (f) Re Andrews, L. R. 8 Q. B. 153, and authorities there collected. of his children and not for his own." And an agreement to that effect-such as an agreement made before marriage between a husband and wife of different religions that boys shall be educated in the religion of the father, and girls in the religion of the mother-cannot be enforced as a contract either at law or in equity (a). After the father's death Courts of Equity have a certain discretion. The children are indeed to be brought up in his religion, unless it is distinctly shown by special circumstances that it would be contrary to the infant's benefit (). When such circumstances are in question, however, the Court may inquire "whether the father has so acted that he ought to be held to have waived or abandoned his right to have his children educated in his own religion"; and in determining this the existence of such an agreement as above mentioned is material (c). The father's conduct in giving up the maintenance, control, or education of his children to others may not only leave the Court free to make after his death such provision as seems in itself best; it may preclude him even from asserting his rights in his lifetime (d). Clauses in separation deeds or agreements for separation, pur- In separaporting to bind the father to give up the general custody of his tion deeds. children or some of them, have for the like reasons been held void; and specific performance of an agreement to execute a separation deed containing such clauses has been refused (e). In one case, however, such a contract can be enforced; namely where there has been such misconduct on the father's part that the Court would have interfered to take the custody of the children from him in the exercise of its appropriate jurisdiction and on grounds independent of contract. The general rule is only that the custody of children cannot be made a mere matter of bargain, not that the husband can in no circumstances bind himself not to set up his paternal rights (ƒ). (a) Andrews v. Salt, 8 Ch. 622, 636. (b) Hawksworth v. Hawksworth, 6 Ch. 539. (c) Andrews v. Salt, 8 Ch. at p. 637. (d) Lyons v. Blenkin, Jac. 245, 255, 263. () Vansittart v. Vansittart, 2 De G. & J. 249, 259. As to the validity (f) Swift v. Swift, 4 D. F. J. 710, |