Same - Encouragement Of Litigation - Champerty And Maintenance

161. In most states an agreement amounting to maintenance or champerty is considered contrary to public policy because of its tendency to encourage litigation. In some states, however, the doctrine is scarcely recognized.

"Maintenance" is denned as the officious intermeddling in a suit by one who has no interest therein, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it.83 "Champerty" is defined as a bargain by a person with a plaintiff or defendant to divide the land or other matter sued for between them if they prevail at law, whereupon the champertor is to carry on the party's suit or defense at his own expense.84 In other words, maintenance is an officious intermeddling in a lawsuit by a mere stranger, and the term is usually applied to cases where such intermeddling is without profit. Champerty is a species of maintenance, or "maintenance aggravated by an agreement to have a part of the thing in dispute." 35 Both champerty and maintenance were recognized as crimes at common law in England and are so recognized in many jurisdictions in the United States.36 The tendency, however, has been toward a relaxation of the rules as to such transactions. In many jurisdictions neither maintenance nor champerty is recognized as a crime, but they are held to render agreements illegal on the ground of public policy; and in some states the doctrine is scarcely recognized at all.37

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

344 Bl. Comm. 135; THOMPSON v. REYNOLDS, 73 I11. 11, Throckmorton Cas. Contracts, 254; Smith v. Hartsell, 150 N. C. 71, 63 S. E. 172, 22 L. R. A. (N. S.) 203. See "Champerty and Maintenance," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-10.

35 Bl. Comm. 135; 1 Hawk. P. C. 257; Torrence v. Shedd, 112 I11. 466; Smith v. Hartsell. 150 N. C. 71, 63 S. E. 172, 22 L. R, A. (N. S.) 203. See "Champerty and Maintenance," Dec. Dig. (Key-No.) § 1; Cent. Dig. §§ 1-10.

36 THOMPSON v. REYNOLDS, 73 I11. 11, Throckmorton Cas. Contracts, 254. See "Champerty and Maintenance," Dec. Dig. (Key-No.) § 9; Cent. Dig. § 21.

37 Richardson v. Rowlind, 40 Conn. 565; Stoddard v. Mix, 14 Conn. 12; Brown v. Bigne, 21 Or. 260, 28 Pac. 11, 14 L. R. A. 745, 28 Am. St. Rep. 752; Bayard v. McLane, 3 Har. (Del.) 139; Schamp v. Schenck, 40 N. J. Law, 195, 29 Am. Rep. 219; Hoffman v. Vallejo, 45 Cal. 564; Bentinck v. Franklin, 38 Tex. 458; Sherley v. Riggs, 11 Humph. (Tenn.) 53. The common law in relation to champerty has been virtually abolished or superseded by statute in several states. Wildey v. Crane, 63 Mich. 720, 30 N. W. 327; Heaton v. Dennis, 103 Tenn. 155, 52 S. W. 175; Potter v. Mining Co., 22 Utah, 273, 61

The rules as to champerty and maintenance were adopted in England in early times "in order to prevent great and powerful persons from enlisting in behalf of one party in a lawsuit, by which the opposite and feeble party would be oppressed and prevented from obtaining justice." 38 It has been said by English judges that, under the enlightened and impartial administration of justice in later times, the object of the law has ceased, and the law itself has become nearly obsolete.38 So it has been said in America that, the law against maintenance was peculiar to early English society, and inapplicable to American society, and therefore that it would not exist here unless by statute enacted here.40 In other jurisdictions, however, the doctrines as to champerty and maintenance have been held to be in force, except to the extent that they have been modified by statute. 41