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* A question has been made also, whether the invalidity of a contract made on Sunday can be set up against an innocent party, as the innocent indorsee of a note made on Sunday. We think not; but this question is not settled. (h)1 But it seems that an official bond, executed on Sunday, is not void as to the parties to be thereby protected. (1) And where a tort cognizable in admiralty has been committed, it is no defence that the vessel was prosecuting her voyage on Sunday. (j)

6. OF MAINTENANCE AND CHAMPERTY.

566, where a horse was sold on Sunday, and a note taken for the purchase-money on the same day, it was held, that both the contract and the note were void, and though the purchaser retained the horse in his possession, without objection or demand by the seller, the law will not imply a promise to pay the stipulated price, or what the horse is reasonably worth. But the contract being void, no property passed to the vendee, and he would be chargeable in trover upon proof of demand and refusal, or in assumpsit upon an express promise to pay, subsequently made in consideration of the retention of the horse. And see Horton v. Buffington, 105 Mass. 399.

Maintenance and champerty are offences at common law; and contracts resting upon them are void. But those offences, if not entered into upon Sunday, if either party have done anything in execution of a contract, it is competent for him, upon another day, to demand of the other party a return of the thing delivered, or, where that is impracticable, compensation; and, if the other party refuse, the original contract becomes thereby affirmed, and the same rights and liabilities are induced as if the contract had been made upon the latter day. This is an indispensable exception to the general rule in regard to illegal contracts, in order to secure parties from fraud and overreaching, which would otherwise be practised upon Sunday by those who know their contracts are void, and that they are not liable civiliter for even frauds practised upon that day. In Williams Paul, 6 Bing 653, the defendant kept a heifer which he had bought of a drover on Sunday, and afterwards made a promise to pay for. Held, that having kept the beast, he was liable at all events on a quantum meruit, notwithstanding the contract made on Sunday. But in Simpson v. Nicholls, 3 M. & W. 240, where, to a count for goods sold and delivered, the defendant pleaded that they were goods sold and delivered to him by the plaintiff, in the way of his trade, on a Sunday, contrary to the statute; and the plaintiff replied, that the defendant, after the sale and delivery of the goods, kept them for his own use, without returning or offering to return them, and had thereby become liable to pay so much as they were reasonably worth, the court held that the replication was bad, and doubts were expressed whether Williams v. Paul was correctly decided. In Dobson v. Harris, 10 Ala.

In Scarfe v. Morgan, 4 M. & W 270, it was held, that where a contract, the execution of which gave a lien on property, was made and executed on Sunday, although the contract was void, the lien attached. See further Sumner v. Jones, 24 Vt. 317; Bloxsome v. Williams, 3 B. & C. 232; Moore v. Kendall, 1 Chand. 33. A common carrier who has received goods into his possession, on Sunday, for transportation, cannot avail himself of the plea of the illegality of the transaction, in a suit against him for the value of the goods, if destroyed by fire. Powhatan S. B. Co. v. Appomattox R. R. Co. 24 How. 247.

(h) See Bloxsome v. Williams, 3 B. & C. 232; Fennelle. Riddle, 5 B. & C. 406; Begbie v. Levi, 1 Cromp. & J 180; Allen v. Deming, 14 N. H. 133; Saltmarsh v. Tuthill, 13 Ala. 390.

(i) Commonwealth v. Kendig, 2 Pa. 448. (1) Phila. R. R. Co. v. Havre de Grace Steamboat Co. 23 How. 209.

1 Cranson v. Goss, 107 Mass. 439, decided that a bona fide holder of a note, taken by him before maturity for good consideration, and without notice that it was made on Sunday, may maintain an action thereon against the maker. See also Knox r. Clifford, 38 Wis 651; Greathead v. Walton, 40 Conn. 226; Trieber v. Commercial Bank, 31 Ark. 128. — K.

less common in fact, as it may be hoped that they are, are certainly less frequent in their appearance before judicial tribunals than formerly; and recent decisions have considerably qualified the law in relation to them. Still, however, they are offences, and contracts which rest upon them are void. Maintenance, in particular, seems now to be confined to the intermeddling of * 766

a stranger in a suit, for the purpose of stirring up strife and continuing litigation. (k) Nor is any one liable to this charge who gives honest advice to go to law, or advances money from good motives to support a suit, or if he stands towards the person who is the party to the suit in any intimate relation, as of landlord, father or son, or master, or husband. (1)

Champerty is treated as a worse offence: for by this a stranger supplies money to carry on a suit, on condition of sharing in the land or other property gained by it. And contracts of this sort are set aside both at law and in equity. And any agreements to pay part of the sum recovered, whether by commission or otherwise, on consideratien either of money advanced to maintain a suit, or services rendered, or information given, or evidence furnished, come within the definition of champerty. (m)1 And

2'.

(k) See, on this subject, Master Miller, 4 T. R. 340; Flight v. Leman, 4 Q. B. 883; Belle. Smith, 5 B. & C. 188; Williamson . Hanley, 6 Bing. 299. It has been considered maintenance for an attorney to agree to save a party harmless from costs, provided he be allowed onehalf of the proceeds of the suit in case of success. In re Masters, 4 Dowl. 18. And see Harrington . Long, 2 Mylne & K. 590. But one may lawfully agree to promote a suit, where he has reasonable ground to believe himself interested, although in fact he is not so. Findon v. Parker, 11 M. & W. 675. In Call r. Calef, 13 Met. 362, it appeared that A had an interest in the exclusive use in Manchester, N. H., of a certain patent machine, and B had an interest in the exclusive use of the same machine in Lowell. S was using said machine in Manchester, without right. A gave to Ba power of attorney, authorizing him to take such steps in A's name as B might judge to be necessary or expedient, by suit at law or otherwise, to prevent S from using, letting, or selling said machine in Manchester, and also anthorizing B to sell to S the right to use said machine in Manchester. And by a parol agreement between A and B, B was to have, as his compensation for

his services under said power of attor ney, one-half of what he should recover or receive of S. B rendered services under said power, for which he was entitled by said parol agreement to $25. A afterwards assigned his right to the use of said machine to C, with notice of B's claim on A, and with authority to C to revoke said power of attorney to B, upon paying B $25. C promised B to pay him said sum, and B consented to the revocation of the

power of attorney. B afterwards brought an action against C to recover said sum of $25. Held, that the parol agreement be tween A and B was not illegal and void on the ground of maintenance and champerty, but was a valid agreement, since the unauthorized use of the patent in either place would diminish the value and profits of the patent in the other, and therefore B had a direct interest in preventing the violation of the patent-right; that C's promise to pay B said sum was on a good and sufficient consideration; and that the action could be maintained.

(1) Perine v Dunn, 3 Johns. Ch. 508; Thalhimer v. Brinckerhoff, 3 Cowen, 647. See also Voorhees v. Dorr, 51 Barb. 580.

(m) Stanley v. Jones, 7 Bing 369; Thurston v. Percival, 1 Pick. 415; La

1 An attorney may stipulate for an absolute or contingent compensation, but not to take a claim for collection, pay all the expenses of prosecution, and divide the sum

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this has also been extended to cover many cases of the purchase of a doubtful title to land, by a stranger, of one not in possession, and of land which he who has possession holds adversely to the title purchased. (n)

throp Amherst Bank, 9 Met. 489, an excellent case on this subject; Byrd v. Odem, 9 Ala. 755, Satterlee v. Frazer, 2 Sandf. 141, Holloway . Lowe, 7 Porter, 488; Key v. Vattier, I Ham. 58; Rust v. Larue, 4 Litt. 417; Martin v. Voeder, 20 Wis. 466; Alexander v. Polk, 39 Miss. 737. It has been held in Kentucky, that a contract by a client to pay his attorney "a sum equal to one-tenth of the amount recovered," was not void for champerty. Evans v. Bell, 6 Dana, 479; Sprye v. Porter, 7 E. & B. 58, 26 L. J. Q. B. 64.

(n) This was forbidden by the English stat. 32 Henry VIII. c. 9, against buying up pretended titles, which was at an early day enacted in some American States, and in others adopted by practice. See Brinley. Whiting, 5 Pick. 353; Whitaker v. Cone, 2 Johns. Cas. 58; Belding v. Pitkin, 2 Caines, 147; McGoon v. Aukeny, 11 Ill. 558. But see Cresinger v. Lessee of Welsh, 15 Ohio, 156; Edwards v. Parkhurst, 21 Vt. 472, Dunbar v. McFall, 9 Humph. 505. The English statute

of 32 Hen. VIII. c. 9, on the subject of champerty, is not in force in Mississippi. In order, therefore, to avoid a contract on the ground of champerty, the common-law offence must be complete, to constitute which it must not only be proved that there was adverse possession at the time of sale, but that the purchaser had knowledge of such adverse possession, this is especially the case where the land granted was in forest and wild at the time of the grant. Sissons v. Reynolds, 7 Smedes & M. 132. In many States such a transaction never was considered illegal. See Frizzle v. Veach, 1 Dana, 211, Stoever v. Whitman, 6 Binn. 416; Hadduck v. Wilmarth, 5 N. H. 181. But it has been held in New York, that an agreement by an attorney to carry on a suit and pay all the expenses, and give the plaintiff a certain share of the proceeds, is not as against a statute, a buying of a chose in action, for the purpose of bringing a suit thereon. Fogerty v. Jordan, 2 Rob. 319.

recovered. Jewell v. Neidy, 61 Ia. 299; Coughlin v. N. Y. &c. R. Co. 71 N. Y. 443; Allard v. Lamirande, 29 Wis. 502. That "a fair agreement to supply funds to carry on a suit in consideration of having a share of the property, if recovered, ought not to be regarded as being per se opposed to public policy;" but that “ agreements of this kind ought to be carefully watched, and when found to be extortionate, unconsciable," or made for "improper objects," ought to be held invalid, and that an "action cannot be maintained against a third person on the ground that he was a mover of and had an interest in a suit, in the absence of malice and want of probable cause," see Ram Coomar Coondoo v. Chunder Canto Mookerjee, 2 App. Cas. 186. "Where the right to compensation is not confined to an interest in the thing recovered but gives a right of action against the party, though pledging the avails of the suit, or a part of them, as security for payment, the agreement is not champertous." Blaisdell & Ahern, 144 Mass. 393. Although an attorney and his client make an agreement void for champerty, the attorney may recover full compensation for his services. Stearns ». Felker, 28 Wis. 594. The indorsement of an overdue promissory note to the plaintiff for the consideration of the principal, the plaintiff to have the accrued interest if he collects it, otherwise the indorser to return the consideration, is not champerty. Taylor e Gilman, 58 N. H. 417. An agreement by a client to pay his attorney "the first fifty dollars collected by him," is no defence to an action by the latter against the former for his services. Scott v. Harmon, 109 Mass. 237. See Martin v. Clarke, 8 R. I. 389 : Orr v. Tanner, 12 R. I. 94, from which it appears that the law relating to champerty is in full force in Rhode Island. Maintenance and champerty are still offences against the common law in Indiana. Quigley v. Thompson, 53 Ind. 317 See Thompson r. Reynolds, 73 Ill. 11; Allard v. Lamirande, 29 Wis. 502. In some States maintenance and champerty are hardly recognized as offences. Hoffman v. Vallejo, 45 Cal. 564; Ballard v. Hale, 48 Cal. 74; Richardson v. Rowland, 40 Conn. 565; Schomp v. Schenck, 40 N. J. L. 195; Perry v. Dicken, 105 Pa. 83.

892

SECTION XII.

OF FRAUD.

We have had repeated occasion to remark, that fraud avoids every contract, and annuls every transaction; and to illustrate this principle in its relation to many of the kinds of contracts which we have already considered. But there are some general remarks on the subject of fraud, especially when considered as a defence to an action brought upon a contract, which we would now make, avoiding a repetition of what has been already said, as far as may be.

It is sometimes asserted, that the distinction in the civil law 'between dolus malus and dolus bonus, is unknown to the common law; and it is true that we have no such distinction expressed in words which are an exact translation of the Latin words. But it is also true that the distinction is itself, substantially, a part not only of the common law, but necessarily of every code of human law. For it is precisely the distinction between that kind and measure of craft and cunning which the law deems it *768 impossible or inexpedient to detect and punish, and therefore leaves unrecognized, and that worse kind and higher degree of craft and cunning which the law prohibits, and of which it takes away all the advantage from him by whom it is practised.

The law of morality, which is the law of God, acknowledges but one principle, and that is the duty of doing to others as we would that others should do to us, and this principle absolutely excludes and prohibits all cunning; if we mean by this word any astuteness practised by any one for his own exclusive benefit. But this would be perfection; and the law of God requires it, because it requires perfection; that is, it sets up a perfect standard, and requires a constant and continual effort to approach it. But human law, or municipal law, is the rule which men require each other to obey; and it is of its essence that it should have an effectual sanction, by itself providing that a certain punishment should be administered by men, or certain adverse consequences take place, as the direct effect of a breach of this law. If, therefore, the municipal law were identical with the law of God, or adopted all its requirements, one of three consequences must flow therefrom; either the law would become confessedly, and by a common understanding, powerless and dead as to part of it; or society would be constantly employed in visiting all its members with punishment; or, if the

law annulled whatever violated its principles, a very great part of human transactions would be rendered void. Therefore the municipal law leaves a vast proportion of unquestionable duty to motives, sanctions, and requirements, very different from those which it supplies. And no man has any right to say, that whatever human law does not prohibit, that he has a right to do; for that only is right which violates no law, and there is another law besides human law. Nor, on the other hand, can any one reasonably insist, that whatever one should do or should abstain from doing, this may properly be made a part of the municipal law; for this law must necessarily fail to do all the great good that it can do, and therefore should, if it attempts to do that which, while society and human nature remain what they are, it cannot possibly accomplish.

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*It follows, that a certain amount of selfish cunning passes unrecognized by the law; that any man may procure to himself, in his dealings with other men, some advantages to which he has no moral right, and yet succeed perfectly in establishing his legal right to them. But it follows, also, that if any one carries this too far; if, by craft and selfish contrivance, he inflicts injury upon his neighbor, and acquires a benefit to himself, beyond a certain point, the law steps in, and annuls all that he has done, as a violation of law. The practical question, then, is, Where is this point? and to this question the law gives no specific answer. And it is somewhat noticeable, that the common law not only gives no definition of fraud, but perhaps asserts as a principle, that there shall be no definition of it. And the reason of this rule is easily seen. It is of the very nature and essence of fraud to elude all laws, and violate them in fact, without appearing to break them in form; and if there were a technical definition of fraud, and everything must come within the scope of its words before the law could deal with it as fraud, the very definition would give to the crafty just what they wanted, for it would tell them precisely how to avoid the grasp of the law. Whenever, therefore, any court has before it a case in which one has injured another, directly or indirectly, by falsehood or artifice, it is for the court to determine in that case whether what was done amounts to cognizable fraud. Still, this important question is not left to the arbitrary, or, as it might be, accidental decision of each court in each case; for all courts are governed, or at least directed, by certain rules and precedents, which we will now consider.

In the first place, it is obvious that the fraud must be material to the contract or transaction, which is to be avoided