(possible, decided on this theory); Williams v. Matthews (1824) 3 Cow. (N. Y.) 252; Bank of Chenango v. Hyde (1825) 4 Cow. (N. Y.) 567; Moses v. McDivitt (1882) 88 N. Y. 62; Wightman v. Catlin (1906) 113 App. Div. 24, 98 N. Y. Supp. 1071; Ramsey v. Gould (1870) 57 Barb. (N. Y.) 398, 8 Abb. Pr. N. S. 174; STARKE V. WANNEMACHER (reported herewith) ante, 167. In Town v. Tabor (1876) 34 Mich. 262, it was held that "there is no law in this state to prevent an attorney from buying a chattel of one person, and then suing another in replevin to get possession of it," the court stating that "the statutes referred to, which forbid certain dealings by attorneys in the way of getting demands with intent to prosecute them for the purpose of profit, have no application." a It will be seen that in the reported case (STARKE v. WANNEMACHER) purchase by an attorney of a note at a receiver's auction sale was sustained as proper upon his evidence, although the statute provided 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." See under the New York statute, infra, III. c. Nor are the statutes intended to prevent purchases of one claim to secure another. Van Rensselaer v. Onondaga County (1823) 1 Cow. (N. Y.) 443; Watson v. McLaren (1838) 19 Wend. (N. Y.) 557, affirmed in (1841) 26 Wend. 425. The transfer by a client to his advocate of the cause of action, as collateral security for fees, is not against the statute prohibiting the purchase of litigious rights, as it was only a transfer for security. Lamothe v. Montreal Street R. Co. (1906) Rap. Jud. Quebec, 16 B. R. 1. that the assignment was taken with The purpose of these statutes in general is to prevent the purchase of claims by attorneys for the purpose of making costs out of their prosecution. Rogers v. Hendrick (1912) 85 Conn. See also New York 260, 82 Atl. 586. cases, infra, III. c. 4 A.L.R.-12. Assignments to an attorney for purposes of convenience are not, in general, intended to be prohibited. Tuller v. Arnold (1893) 98 Cal. 522, 33 Pac. 445; Smedley v. Dregge (1894) 101 Mich. 200, 59 N. W. 411. But a purchase for a client which he repudiated and threw back on the attorney was held within the prohibiting statute. Mann v. Fairchild (1865) 2 Keyes (N. Y.) 106; Mann v. Fairchild (1848) 5 Barb. (N. Y.) 108. A judgment is not considered to be a litigious claim. Rogers v. Hendrick (1912) 85 Conn. 260, 82 Atl. 586. See also Louisiana and New York cases, infra, III. b and c. But it was held in Hudson v. Sheafe (1919)—S. D. 171 N. W. 320, that an assignment of a judgment to an attorney for the prohibited purpose and not within the saving section of the statute was champertous. In Hudson v. Sheafe (S. D.) supra, it was held that the burden was upon the attorney to bring himself within the exception where the statute provided that "every attorney, who, 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." "Nothing in the four preceding sections shall be construed to prohibit the receiving in payment of any evidence of debt or thing in action for any estate, real or personal, or for any services of any attorney actually rendered, or for a debt antecedently contracted, or the buying or receiving any evidence of debt or thing in action for the purpose of remittance, and without any intent to violate the preceding section." It has been held that an Illinois attorney suing in the courts of South Dakota upon an assignment to himself of an Illinois judgment was subject to Π the South Dakota champerty laws. Ibid. Miscellaneous cases. The court does not refer to the statute in Philbrook v. Superior Ct. (1896) 111 Cal. 31, 43 Pac. 402, where an attorney, having been suspended from practice, was held entitled to appear in his own behalf in an action, the cause of which he had purchased after the action had been commenced. It was held in M'Fadon v. Martin (1793) 3 Harr. & McH. (Md.) 153, that after a bond has been assigned to a practising attorney, and after the statute has been pleaded against it, it is too late to indorse it according to the statute (1715, chap. 48, § 9) which provides "that all bills, bonds, or other specialties, taken by any attorney or other person practising the law in any of the aforesaid courts, or any bills, bonds, or other specialties, taken by any clerks, etc., from and after the end of this session of assembly, shall be indorsed on the back side thereof for what matter or how the same did become due; and for default thereof, all such bills, bonds, and specialties shall be void." In Cooke v. Pool (1885) 25 S. C. 593, it was held that bona fide purchaser without notice of a judgment is not precluded from prosecuting it, because his assignor was an attorney who had bought it for the purpose of making it the basis of a suit, although the statute provided, in substance, that any attorney of this court who shall buy any demand for the purpose of putting it in suit, when the owner would not sue the same, shall pay a fine of $100, and be incapable of practising in any court until restored by the supreme court. See, in this connection, Beers v. Washbond (1903) 86 App. Div. 582, 83 N. Y. Supp. 993, infra, III. c. It may be noted that in Re Attorneys & Solicitors Act (1875) L. R. 1 Ch. Div. (Eng.) 573, the court expressed the opinion that an agreement by a solicitor with his client, whereby the former was to receive a sum equal to 10 per cent on the net value of the property recovered in addition to costs, was void for champerty under the Statute 33 & 34 Vict. chap. 28, § 11, providing that "nothing in this act contained shall be construed to give validity to any purchase by an attor ney or solicitor of the interest, or any part of the interest, of his client in any suit, action, or other contentious proceeding to be brought or maintained, or to give validity to any agreement by which any attorney or solicitor retained or employed to prosecute any suit or action, stipulates for payment only in the event of success in such suit, action, or proceeding." In Price v. Mercier (1891) 18 Can. S. C. 303, it was held that a sale to a practising attorney of the Crown's right to property in suit was forbidden by the Quebec statute, prohibiting the sale of litigious rights to practising advocates and attorneys. b. Louisiana. By the Louisiana Civil Code, "public officers connected with courts of justice, such as judges, advocates, attorneys, clerks and sheriffs, cannot purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest." "A right is said to be litigious whenever there exists a suit and contestation on the same." "Litigious rights are those which cannot be exercised without undergoing a lawsuit." The statute relates to attorneys generally, though they reside out of the parish. Denny v. Anderson (1884) 36 La. Ann. 762. The wrongful purchase does not destroy the debt (New Orleans Gaslight Co. v. Webb (1852) 7 La. Ann. 164), which remains in the hands of the assignor; consequently, the wrongful sale is no defense to the debtor against an action by the assignor (Pipes v. Norsworthy (1873) 25 La. Ann. 557; Kuck v. Johnson (1905) 114 La. 782, 38 So. 559). When a transferee of a claim knows that the transferrer was an attorney who bought the claim when it was a litigious right, the transferee takes nothing by the transfer. McCarty v. Splane (1852) 8 La. Ann. 482. To constitute a litigious right there must be a suit. Prevost v. Johnson (1820) 9 Mart. 123. Thus, an attorney may purchase property, the subject of a litigation, after a final judgment settling its title. McMicken v. Perin (1855) 18 How. (U. S.) 507, 15 L. ed. 504. A purchase by an attorney of the court of a note and mortgage on property in litigation, and involved in it, is a nullity. Morris v. Covington (1847) 2 La. Ann. 259. So, the purchase, pending litigation over a mortgage, of a part of the property by the defendant's attorneys, is a nullity so far as the mortgagees are concerned. Consolidated Asso. v. Comeau 1848) 3 La. Ann. 552. Where an attorney purchases at probate sale the right to property which the possessor has seized and carried without the state, he purchases a litigious right and cannot recover it. Copley v. Moody (1847) 2 La. Ann. 487. An interest of an heir not contested at the time is not a litigious right. Grayson v. Sanford (1857) 12 La. Ann. 646. But "while an attorney at law may purchase the uncontested rights of heirs in a succession as an entirety, he is prohibited from thereby acquiring rights of the succession then in Powers litigation." V. Howcott (1915) 137 La. 818, 69 So. 198. In Saint v. Martel (1908) 122 La. 94, 47 So. 413, it was held that a purchase by an attorney of land and oil, the right to which was conceded, is not the purchase of a litigious right because a lawsuit is pending, not over the title, but touching an accounting in regard to the oil. In Evans v. Wilkinson (1843) 6 Rob. 172, it was held that the purchase by the attorney for the defendant of an outside title was not a purchase of a litigious right, the court saying that it hoped the attorney's statement that he bought for his clients was true. A judgment is not a litigious right (Denton v. Willcox (1847) 2 La. Ann. 60), even though it be a judgment of another estate (Lackey V. Tiffin (1857) 12 La. Ann. 53, where it does not appear whether the purchaser was an attorney). But it is otherwise as to a judgment which, at the time of purchase, is being contested in a suit. Todd v. Richmond (1877) Man. Unrep. Cas. 268; Buck v. Blair (1884) 36 La. Ann. 16. So, an attorney cannot purchase a judgment pending an appeal. Copley v. Lambeth (1846) 1 La. Ann. 316; Watterston v. Webb (1849) 4 La. Ann. 173; Mullen v. Amas (1852) 7 La. Ann. 71; McCarty v. Splane (1852) 8 La. Ann. 482. And an attorney cannot purchase a supreme court judgment from his client before it becomes final as against a rehearing. State v. Nix (1914) 135 La. 811, 66 So. 230. The statute also provides that "he against whom a litigious right has been transferred may get himself released by paying to the transferee the real price of the transfer, together with the interest from its date." In Sanders v. Ditch (1903) 110 La. 884, 34 So. 860, the court said: "The penalty imposed upon the ordinary citizen, and that imposed upon the officers connected with the courts of justice who purchase litigious rights, differs in this: that in the one case 'he against whom a litigious right has been transferred may get himself released by paying to the transferee the real price of the transfer, together with the interest from its date,' whilst in the other case the purchase is made ‘under pain of nullity, and of having to defray all costs, damages and interests."" c. New York. 1. The statutes. The substance of a considerable part of the early English statutes against maintenance was early reenacted in New York (see Arden v. Patterson (1821) 5 Johns. Ch. 44, infra), but this enactment was repealed by the revised statutes. It is provided by statute (N. Y. Penal Law, § 274) that "an attorney or counselor shall not: 1. Directly or indirectly buy, or be in any manner interested in buying, a bond, promissory note, bill of exchange, book debt, or other thing in action, with the intent and for the purpose of bringing an action thereon, making the defense a misdemeanor. But (§ 275) "the last section does not prohibit the receipt, by an attorney or counselor, of a bond, promissory note, bill of exchange, book debt, or other thing in action, in payment for property sold, or for services actually rendered, or for a debt antecedently contracted; or from buying or receiving a bill of exchange, draft, or other thing in action for the purpose of remittance, and without intent to violate that section." The foregoing is the substance of the law as enacted by the Revised Statutes (2 Rev. Stat. § 288, in force in 1830) there being some changes, including the words, "for the purpose of bringing an action," instead of "for the purpose of bringing any suit," and a provision for nonsuit being dropped (in 1877). It had been provided by the Statute of 1807 (chap. 107) that it should be a misdemeanor if any attorney of the supreme court or of the common pleas "shall purchase or receive, by way of pledge or security for money lent, any bond, note, or other writing, with intent to commence a suit thereon, and shall commence such suit accordingly." And this statute had been re-enacted in 1813. In 1818 (chap. 259, § 1), it was provided "that no attorney or counselor at law of any court of record in this state shall directly or indirectly buy, or be in any way or manner interested in buying any bond, bill, promissory note, bill of exchange, book debt, or other chose in action," making the defense a misdemeanor; with a proviso similar to that in § 275 of the present law, and a provision for a nonsuit. (The reader will understand that this note does not include matters within subdivision 2 of § 274 of the Penal Law, enacting that an attorney shall not, "either before or after action brought, promise or give, or procure to be promised or given, a valuable consideration to any person, as an inducement to placing, or in consideration of having placed, in his hands, or in the hands of another person, a demand of any kind, for the purpose of bringing an action thereon, or of representing a claimant in the pursuit of any civil remedy for the recovery thereof.") 2. Under early statutes. In Arden v. Patterson (1821) 5 Johns. Ch. 44, the court canceled, on payment back of the consideration, an assignment (made in 1815) of a right of action against A, made to a lawyer by trustees of one who had previously consulted the lawyer about the claim against A. Chancellor Kent said: "This was a purchase by an attorney, for a very small and inadequate consideration, of a matter in litigation, and for the very purpose of a renewed litigation. It was a purchase by a person known to the other contracting party to be an attorney, and he knowing that the other contracting parties held the claim merely in trust for the benefit of creditors. The purchase was avowedly made as a matter of speculation, and at a time when this attorney knew, from previous disclosures made to him in his character of attorney, all the facts on which the foundation of the claim so purchased rested, and which created a belief in his mind that the value of the wine could be recovered. Such a purchase, by such an officer, and under such circumstances, cannot be sustained. It is champerty, for the unlawful maintenance of a suit, and the contract was therefore unlawful, as well by common law as by the statute. The statute declares (1 N. R. L. 172) that 'no officer or other person shall take upon him any business that is or may be in suit in any court for to have part of the thing in plea or demand,' and no person, upon any such agreement, shall give up his right to another, and every such conveyance and agreement shall be void.' And again: 'All persons who move pleas and suits, or cause them to be moved, either by their own procurement or by others,' and sue them at their own proper costs, for to have part of the thing in controversy or demand, or part of the gain, shall be adjudged champertous.' And all gifts and conveyances made for maintenance shall be void.' The purchase of a lawsuit by an attorney, in a case like this, is champerty in its most odious form, and it ought equally to be condemned on principles of public policy. It would lead to fraud, oppression, and corruption. As a sworn minister of the courts of justice, the attorney ought not to be permitted to avail himself of the knowledge he acquires in his professional character, to speculate in lawsuits. The precedent would tend to corrupt the profession, and produce lasting mischief to the community. The knowledge which led to this speculation was acquired by the defendant P., as the attorney of De Peyster, for De Peyster disclosed to him all the facts relative to his dealings with Arden, and which led to the deposit of the wine." The court considered also that the attorney ought to have used his knowedge for the benefit of his client's trustees. In Williams v. Matthews (1824) 3 Cow. 252, the court expressed the view that, under the Statute of 1807, the mere purchase cannot warrant the conclusion that it was for the purpose of prosecution. Under the Act of 1818. Peo The statute is constitutional. ple v. Walbridge (1826) 6 Cow. 512; People v. Walbridge (1829) 3 Wend. 120. It was not intended to prevent a purchase of one demand for the mere purpose of securing another. Thus, an attorney having a junior judgment might lawfully buy a senior judgment to secure it. Van Rensselaer v. Onondaga County (1823) 1 Cow. 443. So, he might purchase a note to secure a bona fide debt, although he was compelled to make a further advance to obtain it. Watson v. McLaren (1838) 19 Wend. 557, affirmed in (1841) 26 Wend. 425. The act did not prevent an attorney from lending money and taking a promissory note which had no earlier legal existence. Bank of Chenango v. Hyde (1825) 4 Cow. 567. The act of buying constituted the offense, and on this being shown, it lay with the defendant to make out that he was within the proviso of the statute. People v. Walbridge (1826) 6 Cow. 512. 3. Under the modern statutes. It is considered in New York that the question of champerty between attorney and client no longer exists outside of the statutes. Zogbaum v. Parker (1873) 66 Barb. 341, affirmed in (1873) 55 N. Y. 120. "It does not affect the validity of the contract between the attorney and his client that, measured by the old rules relating to champerty and maintenance, it would have fallen under their condemnation; for neither doctrine now prevails, except so far as preserved by our statutes. Sedgwick v. Stanton (1856) 14 N. Y. 289." Finch, J., in Fowler v. Callan (1886) 102 N. Y. 395, 7 N. E. 169. If it is found that the purchase in question was made by an attorney for the purpose of putting the claim in suit, a suit will not lie upon the claim thus purchased. Browning v. Marvin (1885) 100 N. Y. 144, 2 N. E. 635. "When the purpose of such a purchase is to bring an action thereon, and it is induced by the procurement of an attorney, it comes within the act, whether the transfer be taken in the name of the attorney or that of another person. Arden v. Patterson (1821) 5 Johns. Ch. 44." Browning v. Marvin, supra. Conceded in Wetmore v. Hegeman (1882) 88 N. Y. 69. An attorney cannot bring an action on a claim for goods sold and delivered, assigned to him by his client for the purpose of bringing an action in a particular county. Sugarman v. Mandolla (1904) 88 N. Y. Supp. 393. A purchase by an attorney at a receiver's sale of disputed claims was held to be within the prohibition of the statute, although he stated that he purchased for his client, and only on its dissatisfaction retained them for himself. Mann v. Fairchild (1865) 2 Keyes, 106; Mann v. Fairchild (1848) 5 Barb. 108. It is error to permit the plaintiff to have judgment of foreclosure, when the statute was pleaded, and it appeared that he purchased the land and mortgage "on the 16th day of February, 1897, receiving the assignment at about half-past ten o'clock in the morning; within an hour he com |