to defendant when he paid the $1,000 note. The certificate for fifteen shares (offered in evidence and contained in the record on this appeal) came into the hands of the plaintiff at the time of his purchase of the note involved in this suit. The indorsement, referred to by Kalman, to the effect that the note is secured by stock in the Missouri Slope Brick & Tile Company, appears on the note. Plaintiff also produced as witnesses the president and secretary of the company. Clearly the evidence of Kalman, if true, was sufficient to show that the note was executed and delivered unconditionally as payment for the fifteen shares of stock evidenced by the stock certificate offered and received in evidence, and that such stock certificate was retained by the company as collateral security for the payment of the note. Kalman's testimony is corroborated by the indorsement of the note, and the books of the company. The defendant was, therefore, not entitled to a directed verdict. The disputed questions were submitted to the jury, under appropriate instructions, eminently fair to the defendant. The jury by its verdict determined these questions adversely to the defendant. This determination is binding on this court. Trial-juryconflicting evidence. Error is also assigned on the court's ruling in sustaining objections to the following ten questions put to plaintiff on his cross-examination: Q. Do you know what the note was given for? Mr. Murtha. Objected to as immaterial and improper cross-examination. The Court. Objection sustained. Q. How much did you pay for this note? Mr. Murtha. I object to that as being immaterial, improper crossexamination, wholly without the issues of this case. The Court. Objection sustained. In his answer, among other things, defendant alleges "that C. H. Starke purchased this note, with other choses in action, from said Missouri Slope Brick & Tile Company for the purpose of bringing suit thereon; that at the time of obtaining said transfer of said note, said C. H. Starke knew or should have known that defendant did not owe the Missouri Slope Brick & Tile Company any sum of money whatever by reason of said note; that said note was purchased, and this action action was instituted and maintained, by plaintiff," etc. Hence, it will be observed that defendant's answer affirmatively alleges that the note was purchased by, and transferred to, the plaintiff. Plaintiff's title, therefore, was not in issue, except as raised by the defense of champerty. As already stated, the defense of champerty was first tried to the court without a jury. Both parties consented to this method of trial, and the record shows that, upon the trial of this issue before court, the plaintiff was fully cross-examined by defendant's counsel with reference to the purchase of the note in question and the amount paid by plaintiff for the assets of the Missouri Slope Brick & Tile Company. There was no dispute as to the consideration for the note, and it was conceded that plaintiff purchased the same after maturity, and subject to all defenses which defendant might have interposed against the original holder. Hence, the defendant could not possibly be prejudiced by the rulings on these objections. In fact, appellant's counsel does not seriously contend that this was proper cross-examination, but bases (32 N. D. 617, 156 N. W. 494.) his argument on the theory that the testimony excluded was material to defendant's defense, as tending to corroborate defendant's contention that the note was conditionally delivered. It is, at least, very doubtful if it had any logical tendency to do this. Even if it did, it was not necessarily proper cross-examination. The questions related to matters not in issue under the defenses tried to the jury, and to matters not covered by the examination in chief. The competency of the testimony sought to be elicited by the question is not apparent. It is virtually conceded that they did not constitute cross-examination. Hence, obviously it cannot be said that the trial court erred in sustaining the objections. (3) Appellant also attempted to appeal from an order denying defendant's motion for judgment not This Appeal-deny obstante. withstanding the verdict. order was nonappealable, and hence ing motion for cannot be consid- judgment non Turner V. ered. Crumpton, 25 N. D. 134, 141 N. W. 209; Houston v. Minneapolis, St. P. & S. Ste. M. R. Co. 25 N. D. 471, 46 L.R.A. (N.S.) 589, 141 N. W. 994, Ann. Cas. 1915C, 529. Appellant is not prejudiced by this fact, however, as such order merely reaffirmed the court's ruling in denying defendant's motion for a directed verdict. The error predicated upon the denial of the motion for a directed verdict was reviewable on the appeal from the judgment, and has been fully considered and determined adversely to defendant. This disposes of all the questions presented for our determination and it follows from what has been said that the judgment must be affirmed. It is so ordered. ANNOTATION. Purchase of cause of action by attorney as champertous. I. Introductory, 173. II. Modern common law, 174. III. Under statutes: a. In general, 176. b. Louisiana, 178. 1. Introductory. This note does not include the question of contingent fees, nor is it intended to include transfers of causes of action, or parts thereof, for fees earned or to be earned in the action; but some of these cases are included in illustration. In the recent case of Sampliner v. Motion Picture Patents Co. (1918) A.L.R. —, — C. C. A. —, 255 Fed. 242, the court alludes to the modern view (referred to in one authority as founded on a closer study of the early books) that Lord Coke wrongly attributed the common-law nonassignability of rights of action to the doctrine of maintenance, that rule being really founded on the idea of nonassignability of personal relation. Admitting that such was the original rea III. continued. c. New York: 1. The statutes, 179. 2. Under early statutes, 180. son for the rule, it does not seem to follow necessarily that Coke and the authorities which sustain him were not speaking of a condition that grew up in England after rights of action had first become assignable, even conceding that the doctrines of champerty and maintenance existed before the statutes of Westminster. The statute of Westminster I. 3 Edw. I., chap. 25, enacted that no officer, etc., should maintain pleas, suits, or matters hanging in the King's courts, for lands, tenements, or other things, for to have part or profit thereof by covenant made, etc. The statute of Westminster II. 13 Edw. I. chap. 49, extended also to the public officers of justice, and the statute of 28 Edw. I. chap. 11, enacted that no officer nor any other (for to have part of the ! thing in plea) should take upon him the business that is in suit, nor upon any such covenant should give up his right to another, etc. The original severity of the old law. of maintenance was much softened in course of time, as belonging to a different state of society. Most of the modern cases on the law of champerty in relation to attorneys are complicated with the question whether the attorney has dealt fairly with his client, which, as a distinct question, is beyond the scope of this note. II. Modern common law. By the modern American common law, in general, the purchase of a cause of action by one holding the office of attorney is not necessarily champertous. Ware v. Russell (1881) 70 Ala. 174, 45 Am. Rep. 82; Drennen v. Walker (1860) 21 Ark. 539; Yeamans v. James (1882) 27 Kan. 195; Richards v. Thompson (1890) 43 Kan. 209, 23 Pac. 106; Jordan v. Gillen (1862) 44 N. H. 424; Cordiner v. Finch Invest. Co. (1909) 54 Wash. 574, 103 Pac. 829. Inferential support is given to the rule by the many cases of purchases by attorneys from clients, which consider solely the question of fairness. A purchase by a lawyer of an undivided interest in real estate, when no suit was pending and there is no evidence that any was in contemplation, is not champertous, though the land is in adverse possession, where the statute allows sales of lands in adverse possession. Drennen v. Walker (1860) 21 Ark. 539, supra. In Richards v. Thompson (1890) 43 Kan. 209, 23 Pac. 106, supra, it was held that an attorney might buy from his client, the plaintiff, real property sued for in the action, the statute permitting sale of real estate in adverse possession. In Yeamans v. James (1882) 27 Kan. 195, supra, the court upheld the purchase by an attorney from his client through a third party, of property then in dispute, considering simply the matter of fairness to the client, and saying: "The law does not go so far as to prohibit an attorney from purchasing from his client. That is, he is not incapacitated by virtue of his relation as an attorney to purchase." In Jordan v. Gillen (1862) 44 N. H. 424, supra, it was held that a party, being indebted to his attorney for fees and advances in other cases as well as in one pending for trespass in carrying off personal property, might properly assign the pending cause of action to his attorney, who might recover on it. An assignment by a client to his attorney of attached property, in consideration of past and future services, is not champertous. Ware v. Russell (1881) 70 Ala. 174, 45 Am. Rep. 82, supra. In Drennen v. Walker (1860) 21 Ark. 539, supra, the court said: "We do not know of any law to prevent an attorney from buying such claim to real estate as he may choose to buy, where there is no question of professional relation or confidence between himself and the parties affected by the purchase, although, in a proper case, we would not hesitate to characterize as unbecoming in a lawyer, to speculate upon the ignorance of others, or upon his own professional knowledge, as to buy up stale or doubtful claims, or such as the parties selling might not know the value of, for the purpose of enriching himself, without regard to the rights or the merits of the holders of the property." SO In sustaining a judgment for the plaintiff in a litigation over real property (alleged to be vacant) the court said: "The allegation is that the respondent is an attorney at law, and that he purchased the interest of a former owner of the land for an inadequate consideration, expecting to recover it, at the end of a lawsuit, on the strength of the title so acquired. But whatever may be said concerning the morality of the transaction, the court cannot say it is illegal. There is no positive rule of law that denies to a purchaser of a debatable title to land, even though he be an attorney at law, the right to litigate in the courts. the question of the sufficiency of the title so acquired." Cordiner v. Finch Invest. Co. (1909) 54 Wash, 574, 103 Pac. 829, supra. In Dunn v. Record (1874) 63 Me. 17, the court, in sustaining the overthrow of a purchase of a claim after verdict, by an attorney from his client, said: "An attorney is not made incapable of purchasing property of his client, which is the subject of litigation." In Griffith v. Anderson (1912) 22 Idaho, 323, 125 Pac. 218, the court, while finding that a county had no title to property sold to it for taxes, stated that an attorney had the same right as any other person to purchase from the county such title as it had in the premises. The court does not refer to the Idaho statute, which provides that "every attorney who, either directly or indirectly, buys or is interested in buying any evidence of debt or thing in action, with intent to bring suit thereon, is guilty of a misdemeanor." But it was held in Sampliner v. Motion Picture Patents Co. (1918) A.L.R. —, — C. C. A. —, 255 Fed. 242, that an assignment by a corporation to its attorney of a cause of action in tort, in consideration of past indebtedness as well as of future professional services, where the assignee took the claim with the intent to sue thereon, was champertous and void. So, in Wisconsin, a purchase by an attorney of the claim of his client in suit, with the intent to continue the litigation for his own benefit, is absolutely void. Miles v. Mutual Reserve Fund Life Asso. (1901) 108 Wis. 421, 84 N. W. 159; Emerson v. McDonnell (1906) 129 Wis. 67, 107 N. W. 1037. In Miles v. Mutual Reserve Fund Life Asso. (Wis.) supra, the court said: "The real mischief which the law of champerty aims to prevent is that of encouraging litigation by persons who have no interest therein independent of that to be derived from carrying it on in whole or in part at their expense. That vice exists where an attorney purchases the claim of his client in suit with the intent to thereafter carry on the litigation at his own expense and for his own benefit, the same as where he agrees to carry on litigation at his own expense, in whole or in part, in the name of another. Such a transaction is, on common-law principles, held to fall under the con At demnation of the law of champerty, and to be absolutely void. . . . torneys are officers of the court, and charged as such with duties in the administration of justice entirely inconsistent with liberty to traffic in the subjects of the litigation of which they have the management. The law which condemns such transactions necessarily renders them absolutely void." It has been held, in Indiana, that the purchase by an attorney from his client of real property in litigation during the litigation is void. West v. Raymond (1863) 21 Ind. 305, where the court said: "It is not necessary that we should, nor do we in the present case, decide that a sale to any person of property, pending litigation concerning it, would be void. We place the case upon the ground that the sale was made to the attorney of Shepherd pending the litigation. We take it to be settled in this state that a contract between an attorney and client, by which the attorney is to have all or a part of the subject-matter of the litigation, is void." But contingent fees are now allowable in Indiana. See, for example, Whinery v. Brown (1905) 36 Ind. App. 276, 75 N. E. 605. In Maires's Case (1898) 7 Pa. Dist. R. 297, where there was abundant fraud, it was held that a contract after verdict, by which a client sold to her attorney for his services and expenses all that he might collect above a small fraction of verdict, was in effect a purchase of a lawsuit, and void. The court quotes Kent, Ch., in Arden v. Patterson (1821) 5 Johns. Ch. (N. Y.) 44, infra, III. c, 1, which was decided under statute. In Ohio, it was held, in Brown v. Ginn (1902) 66 Ohio St. 316, 64 N. E. 123, that "a contract assigning several accounts for the purpose of collection, which gives to the assignee (an attorney) a contingent fee depending on success, to be deducted from the proceeds of a suit to collect the accounts, which suit is to be prosecuted by him in his own name and at his own risk and cost, and which also deprives the assignors of any right to control or compromise the suit, is against public policy as champertous, and is invalid." The court said: "By the terms of this agreement, the attorney was to prosecute an action in his own name, at his own risk and expense, and receive his compensation out of the recovery, thus purchasing disputed claims and stirring up litigation." But an attorney in Ohio may buy a part of a judgment. Thus, "legal services rendered by an attorney in the prosecution of a suit to judgment in the court of common pleas, and a promise to perform further services if error proceedings should be instituted in the circuit or supreme court, constitute a valid consideration for an assignment of one half of such judgment, and the contract is not champertous." Pittsburg, C. C. & St. L. R. Co. v. Volkert (1898) 58 Ohio St. 362, 50 N. E. 924. So, "a promise by an attorney to render legal services in an effort to collect a judgment, for obtaining which the attorney has not been fully paid, and to advance costs and expenses in the first instance, one half to be repaid by the client in case of failure," will "form, as between attorney and client, a valid consideration to support an assignment of a judgment, the net proceeds of which are to be equally divided in case of success." Reece v. Kyle (1892) 49 Ohio St. 475, 16 L.R.A. 723, 31 N. E. 747, where the court said: "We have never had in Ohio any legislation upon that phase of maintenance known as champerty. But the evil of stirring up suits and controversies, whereby persons should be defrauded or injured, was early the subject of legislation. By the Act of February 10, 1824, the encouraging, exciting, and stirring up of any suit, quarrel, or controversy between two or more persons, by certain named officers, including attorneys and counselors at law, with intent to injure such persons, was made an offense punishable by fine of not more than $500, and liability to the party injured in treble damages, which, as to the penal sanction, is the law to-day." In England, certain purchases by a solicitor are now prohibited by the statute of 33 and 34 Vict., see Re Attorneys & Solicitors Act (1875) L. R. 1 Ch. Div. (Eng.) 573, infra, III. 1, a. In 1828, in Roche v. Purcell, 1 Ir. L. Rec. 454, the Irish court refused to set aside a judgment on a claim purchased by an attorney from his client. In Simpson v. Lamb (1857) 7 El. & Bl. 84, 119 Eng. Reprint, 1179, 26 L. J. Q. B. N. S. 121, 3 Jur. N. S. 412, 5 Week. Rep. 227, it was held that a purchase after verdict, but before judgment, of the subject-matter of a suit, by the actual attorney, though he was not the attorney of record, was void as against the policy of the law. But an assignment after verdict in ejectment, by way of security to the attorney, of a crop on the land, was held not improper in Anderson v. Radcliffe (1858) El. Bl. & El. 807, 120 Eng. Reprint, 711, 29 L. J. Q. B. N. S. 128, 6 Jur. N. S. 578, 1 L. T. N. S. 487, 8 Week. Rep. 283. In Smith v. Selwyn (1857) 5 Week. Rep. (Eng.) 682, after the amount of a judgment had been levied from a defendant, he obtained a judge's order setting the judgment aside and ordering the amount refunded, and before the order was made a rule of court he assigned the amount to his attorney. It was held that the assignment was not within the rule preventing parties from assigning property in suit while the proceedings were pending. In Davis v. Freethy (1890) L. R. 24 Q. B. Div. (Eng.) 519, 59 L. J. Q. B. N. S. 318, it was held that an assignment, in consideration of past debts and money, to a solicitor before his employment, of an amount awarded by verdict, with a covenant for further assurance, was valid. III. Under statutes. a. In general. The modern statutes prohibiting certain purchases by attorneys are not, in general, intended to prevent purchases by them in good faith for purposes of investment. Bulkeley v. Bank of California (1885) 68 Cal. 80, 8 Pac. 643; Rogers v. Hendrick (1912) 85 Conn. 260, 82 Atl. 586; Town v. Tabor (1876) 34 Mich. 262; Randall v. Baird (1887) 66 Mich. 312, 33 N. W. 506 |