That it was not void by the law of that state as a champertous contract. 3. That the plaintiff was to be regarded as having sufficiently performed his part of the contract, its literal performance having been excused.

ASSUMPSIT for money had and received and work and labor done; brought to the Superior Court in New Haven county. The following facts were reported by an auditor:

In July 1858, the defendant owned a claim for money against one Sturges, which he had put in suit by attaching certain property in Brooklyn, in the state of New York, in which he claimed that Sturges had a valuable interest; which interest other parties disputed.

There was a mortgage for $2000 on this property, which the defendant was advised it was necessary for the success of his suit to raise.

In view of this necessity, the defendant proposed to the plaintiff that if he would advance the sum required to raise the mortgage, and generally superintend the litigation, paying his personal expenses, the defendant would pay to him one-half of the net avails of the suit; but if nothing should be recovered, the expenses of the litigation to be shared equally. This proposition was accepted by the plaintiff.

Thereupon the plaintiff went to Brooklyn twice, with the sum necessary to raise the mortgage, and consulted the attorney in charge of the suit, paying his own travelling expenses. But the attorney did not on either occasion deem it necessary to raise the mortgage, and not long afterward the defence of the suit was substantially abandoned, and judgment was recovered, and about the 1st day of October 1858, the defendant received, as the net avails of the suit, the sum of $468.53, no part of which has been paid to the plaintiff.

The plaintiff was at all times ready to pay the sum required to raise the mortgage, and to do anything else that might be necessary by way of managing the suit; but, owing to the settlement, nothing further was in fact done by or required of him than to make the two journeys to Brooklyn, with the money which he had raised for the purpose, paying his personal expenses, and to hold the necessary consultations on those occasions with the attorney in Brooklyn.

If, upon these facts, the law should be so that the defendant was bound to pay to the plaintiff one-half of the net avails thus

received, then the auditor found that the defendant was indebted to the plaintiff upon that account in the sum of $234.27, for money had and received for the plaintiff's use, October 1st 1858, with interest from that date. If otherwise, that the defendant was not indebted to the plaintiff upon that account.

There were other items in the accounts of the parties entering into the final result, about which no question was made. Upon these facts the case was reserved for the advice of this

court.

E. K. Foster and Alling, for the plaintiff.

1. The plaintiff performed his part of the contract and earned the stipulated compensation, and should receive it: Lincoln v. McClatchie, 36 Conn. 136. If there was any slight variation in the performance, it was with the consent of the defendant, and does not affect the right to the contract price: Ellis v. Willard, 9 N. York 529; Whitney v. Brooklyn, 5 Conn. 415; Champion v. Hartshorne, 9 Id. 569; Smith v. Lewis, 24 Id. 624.

2. The contract was not invalid on account of champerty or maintenance. In this state, ever since the year 1809, champerty and maintenance have been regulated by statute. The English common law of maintenance and champerty has not been generally adopted in the United States, and was never the common law of this state: Sherley v. Riggs, 11 Humph. 53; Bayard v. McLane, 3 Harris 139, 209; Danforth v. Streeter, 28 Vt. 490; Wright v. Meek, 3 Iowa 472; Sedgwick v. Stanton, 14 N. Y. 289; Stoddart v. Mix, 14 Conn. 24.

3. The validity of the contract is to be determined by the law of New York, the place of performance: Burrell v. Root, 40 N. York 496; Everett v. Vendryes, 19 Id. 436; Carnegie v. Morrison, 2 Metc. 397; Penobscot & Kennebec R. R. Co. v. Bartlett, 12 Gray 244; Giddings v. Eastman, 1 Clark Ch. 19; Thurston v. Percival, 1 Pick. 417; Commonwealth of Kentucky v. Bassford, 6 Hill 526. The common law of maintenance and champerty, so far as applicable to this contract, had ceased to exist long. before the making of this contract in the state of New York: Sedgwick v. Stanton, 14 N. York 289; Durgin v. Ireland, Id. 322; Voorhees v. Dorr, 51 Barb. 580.

Bronson, for the defendant.-The contract under which the plaintiff seeks to recover is void for maintenance and champerty.

The contract was made and was to be performed in this state, and is to be construed according to the laws of this state. The facts show both maintenance and champerty. Champerty is the “unlawful maintenance of a suit in consideration of some bargain to have part of the thing in dispute:" 1 Hawkins P. C., ch. 84, § 1. It is a crime at common law, and in the absence of any statute the law in respect to it is in force in this state: State v. Danforth, 3 Conn. 114; Wallis v. Duke of Portland, 3 Ves. 502; Thurston v. Percival, 1 Pick. 415; Lathrop v. Amherst Bank, 9 Metc. 490: Martin v. Clark, 8 R. Isl. 389; Gregerson v. Imlay, 4 Blatchf. 503; 1 Hawkins P. C., ch. 83, § 36. That the money was to be furnished to sustain a suit in the state of New York does not alter the case. For the crime is malum in se, and no reason can be shown which confines it to the maintenance of a suit in this state. The reason of the law does not admit of such a restricted meaning; acts of maintenance and champerty being prohibited because they tend to oppression and the stirring up of strife. Unless the contrary is shown, it is to be presumed that the common law in regard to maintenance and champerty is in force in the state of New York: Thurston v. Percival, 1 Pick. 415.

The opinion of the court was delivered by

FOSTER, J.-The only point presented by the finding for our consideration is, whether the plaintiff is entitled, upon the facts found, to recover one-half of the sum of $468.53, the amount received by the defendant as the net avails of his suit against Sturges. The plaintiff claims one-half of this sum under a contract with the defendant by which he was to render him certain services in connection with the suit and receive half the net amount recovered; the defendant resists the demand, claiming that the contract is void for maintenance and champerty.

Maintenance at common law signifies an unlawful taking in hand or upholding of quarrels, or sides, to the disturbance or hindrance of common right. The maintaining of one side, in consideration of some bargain to have part of the thing in dispute, is called champerty. Champerty therefore is a species of main

tenance.

Maintenance was an offence at common law, and divers statutes: have been passed in England by Parliament regarding it, commencing as early as the reign of Edward I. The reasons upon

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which the ancient doctrine rested in England can now scarcely be said to exist, and the law has, at times, been regarded with disfavor. As long ago as 1791, Mr. Justice BULLER, in the case of Masters v. Miller, 4 T. R. 340, speaks of a particular application of the law of maintenance almost in the language of contempt. Our statute against unlawful maintenance, first passed in 1809, forbade certain officers of the law, attorneys and counsellors, sheriffs, deputy sheriffs and constables, from buying any bond, bill, promissory writing, book debt, or other chose in action, under certain penalties. As modified in 1848, and as the law now stands in our statutes, if either of the above-named officers shall, with intent to make gain by the fees of collection, purchase any chose in action, and commence a suit upon the same, he shall forfeit a sum not exceeding $100.

As the plaintiff is not one of the officers named in our statute, that statute is not interposed by the defendant in the way of a recovery; the common law is the law relied on.

We are not aware of any case where the law of maintenance and champerty has been considered and passed upon by this court. It is alluded to by CHURCH, J., in giving the opinion of the court in the case of Stoddard v. Mix, 14 Conn. 23, 24, and by ELLSWORTH, J., in Bridgeport Bank v. New York & N. Haven R. R. Co., 30 Conn. 273.

Some of our sister states have adopted the common law on this subject and some have not. Massachusetts and Rhode Island recognise the rule of the common law: Thurston v. Percival, 1 Pick. 415; Lathrop v. Amherst Bank, 9 Met. 489; Martin v. Clark, 8 R. Isl. 389. Among the states which discard the rule, are Vermont, Delaware, Tennessee and Iowa: Danforth v. Streeter, 28 Verm. 490; Bayard v. McLane, 3 Harrington 139, 209; Therley v. Riggs, 11 Humph. 53; Wright v. Meek, 3 Iowa 472.

There are such broad distinctions in the state of society between Great Britain and this country, that the reasons which make a law against maintenance and champerty salutary or necessary there, do not exist here; certainly not to the same extent. Mr. Justice GRIER, in giving the opinion of the court in Roberts v. Cook, 20 How. 467, says that the ancient English doctrines respecting maintenance or champerty have not found favor in the United States. The enforcement of the law here would not always, perhaps not generally, promote justice. Mr. Chief Justice PARKER, in giving

the opinion of the court in Thurston v. Percival, 1 Pick. 417, says, "It sometimes may be useful and convenient, where one has a just demand which he is not able from poverty to enforce, that a more fortunate friend should assist him, and wait for his compensation until the suit is determined, and be paid out of the fruits of it."

The contract between these parties, however, was in regard to a suit pending in the state of New York; the property attached was there situate; the services to be performed were to be performed there; and the money to be recovered, if recovered at all, was there to be recovered. The contract in short was to be performed in the state of New York. The law of New York therefore must necessarily govern the contract: Commonwealth of Kentucky v. Bassford, 6 Hill 526. It becomes quite unnecessary to decide what the law of Connecticut, or of other states, may be on the subject of champerty and maintenance.

The law of New York upon this subject is very clearly and explicitly laid down by the Court of Appeals of that state in the case of Stanton v. Sedgwick, 14 N. Y. 289. The facts in that case, briefly stated, are these. One Trowbridge undertook, at his own expense, to obtain for the defendant, Stanton, title from the state of New York to a certain lot of land in the city of Syracuse, in that state, then used and occupied by Stanton for a stone yard. Stanton had made erections on the lot, exceeding the value of $200, by virtue of which he had acquired a pre-emption right to purchase it from the state, under a certain legislative act then in force. Stanton agreed to convey to Trowbridge, by a good and sufficient conveyance, in consideration of the above-mentioned expenses and trouble, one undivided half of the lot free from encumbrance or lien except for the purchase-money; both parties to share mutually the cost or purchase price to be paid to the state therefor.

Trowbridge performed the contract on his part; he procured a patent to be duly issued to Stanton, and paid to him one-half of the purchase money advanced to the state. Trowbridge then assigned his interest in the contract to the plaintiff, Sedgwick, and a demand of a conveyance of the one-half of the lot was made, which Stanton refused to give, and this action was brought to enforce the contract. The case was tried at a special term, and judgment was given requiring the defendant to convey to the plaintiff the