fense "is confined to cases where a man improperly, and for the purpose of stirring up litigation and strife, encourages others either to bring actions or to make defenses which they have no right to make." In some jurisdictions this offense is not recognized at all. And in no jurisdiction is it held an offense for a man to maintain the suit of his near kinsman, servant or poor neighbor, out of charity and compassion.s But the assistance must be because of the interest or relationship. Where several persons have a common interest in a suit brought by one of them it is not maintenance for the others to contribute to the expense of the suit.10

§ 663. Champerty.-Champerty, according to Blackstone, consists in an agreement to divide the land or other matter sued for between the parties if they prevail at law, whereupon the champertor is to carry on the party's suit at his own expense.11 It has been held, however, that it is not essential for the champertor to carry on the suit at his own expense; that champerty is committed by an attorney, for example, where he agrees to conduct the suit for a contingent compensation.12 This view, however, is very generally repudiated.13

In many states the courts have repudiated the commonlaw doctrine relative to maintenance and champerty;14 and in many of them statutes have virtually repealed the common

7 Findon v. Parker, 11 M. & W. 682; Employers' Liability Assur. Corp. v. Kelly-Atkinson Const. Co., 195 Ill. App. 620.

84 Bl. Comm. 134; Walker v. Perryman, 23 Ga. 309, 316.

9 Dunn v. Herrick, 37 Ill. App. 180.

10 Davies v. Stowell, 78 Wis. 334, 47 N. W. 370, 10 L. R. A. 190.

11 4 Bl. Comm. 135. See also Huston v. Scott, 20 Okla. 142, 94 Pac. 512, 35 L. R. A. (N. S.) 721, and note.

12 Lathrop v. Amherst Bank, 9 Metc. (Mass.) 489.

13 Phillips v. South Park Commissioners, 119 Ill. 626, 10 N. E. 230; Aultman v. Waddle, 40 Kans. 195, 19 Pac. 730.

14 Lewis v. Broun, 36 W. Va. 1, 14 S. E. 444; Sedgwick v. Stanton, 14 N. Y. 289; Winslow v. Central Iowa R. Co., 71 Iowa 197, 32 N. W. 330; Gilman v. Jones, 87 Ala. 691, 5 So. 785, 7 So. 48, 4 L. R. A. 113. See also, note to 83 Am. St. 167.

law pertaining to them. At the old common law both of these offenses, as well as common barratry, were misdemeanors. 15

§ 664. Modern rule.-According to the modern rule the mere fact that an agreement between an attorney and his client provides for contingent compensation for the former's services, thereby giving the attorney an interest in the subject-matter of the suit, does not render the contract void.16 But where the attorney agrees to conduct the litigation, pay the costs and expenses of the suit, or advance money therefor, in consideration of a portion of the sum or property to be recovered, the agreement is champertous, and void as against public policy1 and where an attorney is so interested in the result of the suit as to pay the entire expense, control the settlement and take joint interest in the property, the contract will be void.18 An assignment of a claim to an attorney for a sum much less than he considers the claim worth, is champertous and void.19 The gist of champerty, according to a recent decision,20 is the malicious or officious intermeddling in a suit in which the intermeddler has no interest. This, however, is the gist of maintenance rather than the gist of champerty.

Where the facts justify it, the defense of champerty is tenable whether pleaded or not.21

15 Wildey v. Crane, 63 Mich. 720, 30 N. W. 327.

16 Holloway v. Dickinson, 137 Minn. 410, 163 N. W. 791 (attorney took a personal injury case for onethird of the amount to be obtained either by settlement or suit); Rohan v. Johnson, 33 N. Dak. 179, 156 N. W. 936, L. R. A. 1916 E. 64n, Ann. Cas. 1918A, 794; Bennett v. Tighe, 224 Mass. 159, 112 N. E. 629; Dennin v. Powers, 160 N. Y. S. 636, 96 Misc. 252.

17 Young v. Young, 196 Mich. 316, 162 N. W. 993. See also, Jones

v. Pettingill, 245 Fed. 269, 157 C. C. A. 461, certiorari denied; Pettingill v. Jones, 245 U. S. 663, 38 Sup. Ct. 61, 62 L. ed. 519; Chreste v. Louisville R. Co., 173 Ky. 486, 191 S. W. 265.

18 Jones v. Pettingill, 245 Fed. 269, 157 C. C. A. 461.

19 Sampliner v. Motion Picture Patents Co., 243 Fed. 277.

20 Rohan v. Johnson, 33 N. Dak. 179, 156 N. W. 936, L. R. A. 1916E, 64n, Ann. Cas. 1918A, 794.

21 Reynolds v. Binion, 177 Ky. 189, 197 S. W. 641.

CHAPTER XLV

DUELING AND PRIZE FIGHTING.

Section

665. Dueling.

666. Prize fighting.

Section

667. Importation of prize fight picture films.

§ 665. Dueling.-Dueling is the fighting of two persons against each other, at an appointed place, founded upon a precedent quarrel. It results from design, whereas affray results from a sudden quarrel.

If one of the fighters kills the other the crime is murder. Moreover, all who are present and abet the crime are also guilty of murder as principals in the second degree.1

To challenge another to fight a duel is a misdemeanor at common law. It It is also a misdemeanor to provoke another to send a challenge or to be the bearer of it.

The fact that the duel is to occur in another state is immaterial.3

§ 666. Prize fighting.-Consent to an assault and battery is a good defense provided the act does not amount to a breach of the public peace. Manly sports, such as wrestling, boxing, playing at cudgels or foils, and the like, where there

1 Cullen v. Commonwealth, 24 Grat. (Va.) 624; Reg. v. Young, 8 Car. & P. 644.

2 State v. Farrier, 8 N. Car. 487; note to 25 L. R. A. 437; 1 East P. C. 242; 1 Hawk. P. C., ch. 31, § 21.

3 Harris v. State, 58 Ga. 332; State v. Farrier, 8 N. Car. 487.

4 People v. Bransby, 32 N. Y. 525; Champer v. State, 14 Ohio St. 437.

is no motive or intent to do bodily harm, are not crimes. But prize fighting, which amounts to a breach of the public peace, or which tends to cause such, is a misdemeanor, and the consent of the parties is no defense.5

§ 667. Importation of prize fight picture films.—By an act of congress, which became effective July 31, 1912, the importation of pictorial representations of prize fights is made a penal offense. And, in construing this act, it has been held that where a picture film, of a prize fight on the Canadian side, was made by means of photographic apparatus on the American side, opposite apparatus on the Canadian side, the two being connected, it constituted a violation of the statute, since the parties, by the means employed, caused the picture to be brought into the United States in violation of the statute.7

5 Commonwealth v. Collberg, 119 Mass. 350, 20 Am. Rep. 328; Seville v. State, 49 Ohio 117, 30 N. E. 621, 15 L. R. A. 516 and note.

6 United States v. Johnston, 232 Fed. 970.

7 Pantomimic Corp. v. Malone, 238 Fed. 135, 151 C. C. A. 211.

§ 668. In general.-Escape, prison breach and rescue are various modes of liberating a prisoner unlawfully. Escape is accomplished without violence; prison breach by means of violence, and rescue by the aid of a third party, either with or without violence.

§ 669. Escape.-Escape, at common law, is a misdemeanor. As said by Justice Peters, in a case frequently cited, "The escape of a person lawfully arrested, by eluding the vigilance of his keepers, before he is put in hold or in prison, is an offense against public justice; and the party himself is punishable by fine and imprisonment. For however strong the natural desire of liberty may be, yet every man is bound to submit himself to the restraints of the law."

This offense can be committed by the officer or other person who has the prisoner in custody as well as by the prisoner himself.

Where the custodian either negligently or voluntarily allows a prisoner to go under circumstances which do not constitute due course of law he commits a misdemeanor.2 To render the custodian criminally liable, however, the prisoner

1 State v. Doud, 7 Conn. 384.

2 Houpt v. State, 100 Ark. 409, 140 S. W. 494, Ann. Cas. 1913C, 690

and note. See also, note to 95 Am. St. 115.