As to the legality, as distinguished from the policy and morality, of the practice, we find that while such arrangements have sometimes been held cham-pertous, and while they are always regarded with disfavour by the Courts, they have been sustained in some States. In the most recent case in Pennsylvania, the legality of such contracts in that State is said to be well settled: Perry v. Dicken, 14 W. N. C. 245. On the other hand, Chief Justice Gray, in the case of Ackert v. Barker, 131 Mass. 436, cites the Massachusetts decisions, and after declaring upon their authority that such contracts are void, he goes on to say: "The law of Massachusetts being clear, there would be no propriety in referring to the conflicting decisions in other parts of the country. If it is thought desirable to subordinate the rules of professional conduct to mercantile usages, a change of our law in this regard must be sought from the Legislature, and not from the Courts." Other important American cases are discussed in the articles in the Albany Law Journal above referred to, and see also Weeks, Attorneys at Law, §§ 350, et seq.
In County of Chester v. Barber, 97 Pa. St. 455, Paxson, J., said : "That an attorney may make any contract he sees proper with his client in regard to his compensation, where the client is a private citizen, and acting in his own behalf, is not denied. All that the law will do in such case is to scrutinize the transaction and see that it is fair and that no unconscionable advantage has been taken either of the necessities or the ignorance of the client." The burden is upon the attorney to show the fairness of the transaction: Nesbit v. Lock-man, 34 N. Y. 167; Hitchings v. Van Brunt, 38 lb. 335. As to whether the fact that a champertous agreement has been made between the plaintiff and his attorney can be urged as a defence to the action, the decisions are conflicting. The weight of authority would seem to be against it. See Courtright v. Burnes, 2 McCrary, 532; Whitney v. Kirtland, 27 N. J. Eq. 333; Allison v. Railroad, 42 Iowa, 274; Robinson v. Beall, 26 Ga. 17; sed contra, Greenman v. Cohee, 61 Ind. 201; Barker v. Barker, 14 Wis. 142; Webb v. Armstrong, 5 Humph. 379; Morrison v. Deaderick, 10 Humph. 342.
On the property, agree with a claimant that legal proceedings shall be instituted in his name to recover it, and they will supply him with documents, information, and evidence not specified, but such evidence as will enable him to recover it, and to be rewarded with a share when *recovered, this is maintenance in its worst aspect (t). And where, in consideration that the plaintiff would take the necessary steps to contest a will, and would advance money and obtain evidence for such purpose, and instruct an attorney, defendant promised plaintiff half the property which might come to defendant by reason of such proceedings, this agreement was held void as amounting to champerty; although the plaintiff was a relation of the defendant, and had some collateral interest in the suit (u). It is worth observing, that it is mainly for the purpose of avoiding maintenance that the rule of law forbidding the assignment of choses in action was established (x), a rule which, as the law admitted the assignee to sue in the name of the assignor was seldom, in practice, allowed to interfere with the liberty required by trade and commerce. The disadvantages, however, of the rule are now obviated by the provisions of the Judicature Act of 1873, to which I shall have occasion again to refer you (y)1
(t) Sprye v. Porter, 26 L. J. (Q. B.) 64; 7 E. & B. (90 E. C. L. E.) 58; Simpson v. Lamb, lb. 121; 7 E. & B. (90 E. C. L. R.) 84; Knight v. Bowyer, 26 L. J. (Ch.) 769; 27 L. J. (Ch.) 520; Anderson v. Radcliffe, 28 L. J. (Q. B.) 32; S. C. in Ex. Ch., 29 L. J. (Q. B.) 128.
(u) Hutley v. Hutley, L. R. 8 Q. B. 112; 42 L. J. (Q. B.) 52.
(x) Litt. 347; Co. Litt. 214 a; Shep. Touch. 240.
(y) See as to the assignment of choses in action, 36 & 37 Vict. c. 66, 8. 25, Bub-sec. 6; and post, Lect. VII., "Assignment of Contracts."
1 The offence of maintenance seems now to be confined to the intermeddling of a stranger in a suit for the purpose of stirring up strife and continuing Litigation : Dorwin v. Smith, 35 Vt. 69. An agreement between an attorney and his client that he shall be first paid out of the funds recovered is not maintenance or champerty: Christie v. Sawyer, 44 N. H. 298; Jordan v. Gil-len, lb. 424; Moody v. Harper, 38 Miss. 599; Ryan v. Martin, 16 Wis. 57. -s.
*A11 contracts between British subjects and alien enemies, not having a license to trade with this country, are void, and cannot be enforced, even upon the return of peace (z). The sovereign of this country has a right to proclaim war, with all its consequences, enforcing or mitigating them either generally or in particular instances, as may be thought best by the Government. One of these consequences is, that trade and dealing with the enemy, unless expressly permitted, are forbidden. For a British subject, not domiciled in a neutral country, to ship a cargo from an enemy's port is prima facie dealing and trading with the enemy, and therefore forbidden by law; and consequently a contract made before the war, under which it is agreed that a cargo shall be shipped from a port which, by the declaration of war, becomes that of the enemy, is thereby rendered illegal, and no action can be founded upon the fact of its not being performed (a). But if the contract has been made before the war be(2) Kensington v. Inglis, 8 East, 273. See Potts v. Bell, 8 T. R. 548.
(a) Esposito v. Bowden, 27 L. J. (Q. B.) 17, in Ex. Ch.; 7 E. & B. (90 E. C. L. R.) 763; Reid v. Hoskins, 24 L. J. (Q. B.) 315; 5 E. & B. (85 E. C. L. R.) 729; 26 L. J. (Q. B.) 5; 6 E. & B. (88 E. C. L. R.) 953, in Ex. Ch.
In Sedgwick v. Stanton, 4 Kernan, 301, Selden, J., said: "I still think, in view of the manifest tendency of modern judicial opinions, as well as of the plain scope and intent of our Legislature upon the subject, that not a vestige of the law of maintenance, including that of champerty, now remains in this State, except what is contained in the Revised Statutes." See on this subject Thompson v. Reynolds, 73 III. 11; Backus v. Byron, 4 Mich. 535; Danforth v. Streeter, 28 Vt. 490; Voorhees v. Dorr, 51 Barb. 580; Sherley v. Riggs, 11 Humph 53; Smith v. Thompson, 7 B. Mon. 305; Taylor v. Gilman, 58 N. H. 417; Richardson v. Rowland, 40 Conn. 572; Hoffman v. Vallejo, 45 Cal. 564; Lytle v. State, 17 Ark. 608. 256 tween their respective countries began, the parties thereto may sue upon it when peace is restored (b)1.