#### Decker, by guardian *ad*litem, Respondent, vs. Becker, Appellant.

*October 7*—

October *25, 1910.*

*Champerty: Question for court or for jury?*

When it is suggested during the trial that an action is being prosecuted under a champertous agreement, the question is properly one for the court to determine and not one for the jury.

*543Appeal from a judgment of tbe circuit court for Ozaukee county: Mae,tiN L. Luecic, Circuit Judge.

*Affirmed.*

Tbis is an action for damages for tbe utterance of words slanderous *per se.*, Tbe jury returned a special verdict finding tbat tbe words bad been spoken, and assessing tbe damages.

During tbe course of tbe trial tbe guardian *ad litem*for tbe plaintiff testified tbat be bad arranged witb tbe plaintiff’s attorney -tbat, unless tbe case was won, bis ward should not be required to pay any costs. He also testified tbat be bad tbat day paid tbe plaintiff’s attorney money to subpoena a witness, and tbat be bad-previously paid bim some money to pay costs in tbe case. Tbe plaintiff’s attorney testified tbat there were no arrangements witb tbe parties plaintiff to tbis action witb reference to tbe payment of costs in tbe action, “except tbat tbe guardian *ad litem*in fact, in case we won tbe suit, *Mr. Beclcer*would have to pay tbe costs; if we would lose, Mr. Decker would have to pay bis own costs, tbe plaintiff would.”

Tbe court refused to submit tbe following questions requested by defendant’s counsel for tbe special verdict:

“(5) Is tbe above entitled action maintained and prosecuted under a champertous agreement ?

“(6) Is tbe above entitled action tainted witb champerty ?

“(7) Did tbe attorney for tbe plaintiff agree to pay any part of tbe costs of prosecuting tbe above entitled action?”

Tbis is an appeal from tbe judgment in plaintiff’s favor on tbe ground tbat tbe court erred in refusing to submit tbe above questions to tbe jury.

Eor tbe appellant there was a brief by *Wm. F.*Bchanen, attorney, and *James T).*Bhaw, of counsel, and oral argument by *Mr. Bchanen.*

For tbe respondent there was a brief by *Ghas. J. Kwnny*and *J. F. Uselding,*and oral argument by *Mr. Kwnny.*

They ■cited, among other cases, *Orcutt v. Pettit,*4 Denio, 233, 17 *544N. Y. C. L. 558; *Cescheidt v. Quirk,*66 How. Pr. 212, 5 Civ. Proc. 38.

SiebeciceR, J.

Tbe only ground for reversal of the judgment pressed in this court is that the court erred in refusing-to have the jury determine whether or not the evidence established that the action was being prosecuted by the plaintiff’s attorney under a champertous agreement. It is urged' that the defendant was of right entitled to have this question determined by the jury, for the reason that if they found that such a champertous agreement existed, then it established a defense for the abatement of the action. Whether such an issue, if the fact were alleged in the answer, issue taken-thereon, and evidence offered to support it, is to be determined by a jury, need not be considered because this is not the state-of the case. It was said in *Miles v. Mut. R. F. L. Asso.*108 Wis. 421, 84 N. W. 159, that:

> “Champerty need not be pleaded and an issue need not be-formed in regard thereto in order that it may be established and taken advantage of in the suit. It cannot be waived by any party to the litigation, nor stipulated out of the case.. The taint of champerty does not affect the merits of a case at all, but affects the right of the champertor to use the court,, regardless of the mere merits of his claim.”

It is established that when a tidal court is informed of the-fact that the action pending before it is so tainted, it is its-duty to refuse to proceed therein and to dismiss the action. *Kelly v. Kelly,*86 Wis. 170, 56 N. W. 637; *Miles v. Mut. R. F. L. Asso., supra,*and cases there cited.

We are persuaded that the court committed no error in holding that the question of champerty, which was first suggested while evidence was being received upon the trial, was-properly a subject for determination by the court and not one-for the jury.

*By the Court.*— Judgment affirmed.