22 iimunmn amronrnn. `
The option or alternative contained in the writing of February 10th,
by which White was given the election to take, instead of his money
and interest, one-half of the railway property that might beawarded to
Elliott in the suit with Holladay and Emmett, after deducting the tri-
fling sum of a million dollars' worth of the company bonds for Elliott’s
individual use, and one hundred thousand dollars more for his private
. counsel, though undoubtedly champertous, as involving a division of
the Held or- product of the litigation, isa distinct agreement from that
involved in this suit. The assignment under which the plaintiff seeks
toenforce the decree against Ben Holladay was not given to secure
the performance of this option, but the repayment of the money
loaned. The contingency upon which the right to exercise this option
depended never occurred, for Elliott never obtained "the possession"
of any of said property, or notified White thereof. This suit is
brought to enforce the assignment given by Elliott as security for g
money loaned him under the writing of February 10th, which he has
failed to repay. And while it does, in my judgment, steer clear
of the champertous option clause, its maintenance does involve the
recognition of the agreement under which the money was advanced
to Elliott, to enable him to make good his defense in the suit with his
partners; and if this is void for maintenance, the assignment falls
with it. The assignment or security stands no better, in this respect,
than the debt or contract out of which it arose, and for which it was
given. ·
It does not appear that the courts of the state have ever passed on
the question whether the old English law of maintenance is in force
_ here as a part of the common law or not. The evident modern drift
of both the English and American courts is in the contrary direction,.
and the old doctrine of maintenance, which includes champerty, is
treated as something belonging to the past and not suited to the cir-
cumstances of this age. »Findon v. Parker, 11 Mees. & W. 679 ;.
Wright v. Tebbitts, 91 U. S. 252; McPlierson v. Cox, 96 U. S. 416 ;,
Small v. Mott, 22 Wend. 405; Thalhimer v. Brinkerhoji 3 Cow. 643;
Richardson v.·Rowland., 40 Conn. 570; Sedgwick v. Stanton, 14 N. Y.
291 ; M athewson v. Fitch, 22 Cal. 93; Hojman V. Vallejo, 45 Cal. 566.
In Small v. Mott, supra, Chancellor Wanwoivru says "that most of
the absurd rules relative to maintenance, which are found in the early
reports of the English courts of justice, were founded on the broad
and sweeping provisions of the statutes" of Edw. I. and III., and Rich.
II. For instance, chapters 25, 28, and 30 of 3 Edw. I., prohibited
the king’s officers, such as clerks, sheriffs, justices, or "stewards of
great men," from taking part in quarrels depending in the king’s
courts, or maintaining any suits "hanging" in such courts for lands
or other things on part or proht thereof. ‘
There is no statute in Oregon against maintenance, and, by express.
enactment, a valid conveyance may be made of lands in the adverse
possession of another, while choses in action may be sued on` in the