1 Hacket v. Tilly, 11 Mod. 93; 8. c. 2 Ld. Raym. 1207; Fox v. Tilly, 6 Mod. 225; Given v. Driggs, 1 Caines, 450; Kneeland v. Rogers, 2 Hall, 579; Hackett v. Tilley, Holt, 201; Swett v. Poor, 11 Mass. 549.
2 Craig v. Missouri, 4 Peters, 410. The subject of maintenance was much discussed in the late case of Sprye v. Porter, 7 El. & B. 57 (1856); Simpson v. Lamb, 7 El. & B. 84; Elliott v. Richardson, Law R. 5 C. P. 744 (1870).
3 4 Black. Comm. 134; State v. Wynne, 1 Hawks, 454; Dyer, 355 b; Co. Litt. 368; Bac. Abr. Maintenance; Chitty on Cont. 675; Thurston v. Percival, 1 Pick. 415; Redman v. Sanders, 2 Dana, 70; Brinley v. Whiting, 5 Pick. 359; Belding v. Pitkin, 2 Caines, 147.
4 2 Story, Eq. Jur. § 1048, note 2; 1 Russell on Crimes, B. 2, ch. 20, p. 177.
5 2 Story, Eq. Jur. § 1048, note 2; Wood v. Downes, 18 Ves. 125; Strachan v. Brander, 1 Eden, 303, note; Arden v. Patterson, 5 Johns. Ch. 44.
1 Findon v. Parker, 11 M. & W. 675, 682. Lord Abinger said: "The law of maintenance, as I understand it upon the modern constructions, is confined to cases where a man improperly, and for the purpose of stirring up litigation and strife, encourages others either to bring actions, or to make defences which they have no right to make. I do not like to give an opinion upon an abstract case, and therefore am not desirous to consider it; but if a man were to see a poor person in the street oppressed and abused, and without the means of obtaining redress, and furnished him with money, or employed an attorney to obtain redress for his wrongs, it would require a very strong argument to convince me that that man could be said to be stirring up litigation and strife, and to be guilty of the crime of maintenance; I am not prepared to say, that, in modern times, courts of justice ought to come to that conclusion. However, I give no opinion upon that point. In this case I proceed upon the ground that there was reasonable evidence of a common link of interest uniting the proprietors of the lands in question at the time they made the agreement." See also Flight v. Leman, 4 Q. B. 883; Pechell v. Watson, 8 M. & W. 691; Hunter v. Daniel, 9 Jur. 526; Thallhimer v. Brinckerhoff, 3 Cow. 647.
3 Master v. Miller, 4 T. R. 340; Perine v. Dunn, 3 Johns. Ch. 508; Thurston v. Percival, 1 Pick. 417; Baker v. Whiting, 3 Sumner, 475.
4 Wickham v. Conklin, 8 Johns. 220; Thallhimer v. Brinckerhoff, 3 Cow. 647. .See Call v. Calef, 13 Met. 362.
5 Ibid.; Moore v. Usher, 7 Sim. 384; 4 Black. Comm. 135; 2 Story, Eq. Jur. § 1049; Williamson v. Henley, 6 Bing. 299; 1 Russell on Crimes, B. 2,ch. 20, p. 177.
§ 712. Embracery is another species of maintenance, and consists of any practices by which it is attempted to influence a jury corruptly to one side, whether it be by promises, persuasions, entreaties, money, entertainments, or the like, and avoids a contract made in consideration thereof.3 Nor does it matter whether the jury be actually influenced or not; the attempt alone constitutes the offence. And if money be given to any person to be distributed by him as a bribe to the jury, it constitutes embracery, although the money be not distributed. Wherever a person, from his relationship to the parties, is justified in maintaining a suit, he may exercise his influence to persuade or labor a juror to appear and give a verdict according to his conscience; but a mere stranger cannot do even this.4
§ 713. Champerty, as distinguished from maintenance, is a bargain for an interest in or share of the subject-matter of a suit, in case it prevail, in consideration that the champertor advance money or carry on the suit at his own expense,5 -while maintenance does not involve any agreement for an interest in the subject-matter. Champerty is, therefore, maintenance, and something more, and is frowned upon both by law and equity, as tending not only to foment litigation, but to pervert the objects of the law.1 Thus, where an attorney, after rendering some service in a suit brought by the defendant, entered into an agreement with him, by which he was to receive ten per cent upon the sum recovered, the agreement was held to be void for champerty.2 A contract between attorney and client that the former shall prosecute a case at his own expense, for a certain part of the subject in litigation, is champertous and void.3 And a contract between client and attorney, that the latter should receive a moiety of the amount recovered, for his compensation, though made abroad where such a contract is legal, is void in England, if to be performed there, as much as if made there.4 And even contracts between attorney and client for a larger compensation, on condition of success, are looked upon with great suspicion, and the presumption is said to be against their validity.5 In England, a contract between an attorney and client, that in consideration of his advances and services, the former shall have, in addition to his legal costs and charges, a sum according to the benefit to the client resulting from the suit, and sufficient to reward the attorney, is as much void for maintenance as if the attorney were to have a share of the property recovered.1 And in England, a contract by a client to pay a barrister for advocating his cause is illegal, and cannot be enforced.2 So, also, the assignment to a navy agent of part of the subject of a prize suit then depending, in consideration of his paying the costs thereof, was held to be void for champerty. It is not confined to advances of money, in consideration of a division of the subject-matter of suit, but embraces all modes of assistance furnished on such consideration. Thus, an agreement to give up certain securities, or to communicate certain information, or to procure evidence, upon condition of receiving a portion of the sum recovered, is champerty.3 Nor does the rule in equity differ from that which obtains at law: in both tribunals champerty constitutes a complete defence to a contract.4