CONCURRING OPINION OP
PERRY, J.I concur in the foregoing opinion, but on two of the subjects under consideration shall' state more at length my reasons for my concurrence.
*155Defendant’s undertaking was that hie would conduct the case for Van Gieson in the suit of Maile v. Van Gieson (whether he so undertook to appear until the final disposition of the case in the supreme court of the United States or only until a decision by the supreme court of the Territory is immaterial in this connection) and to pay all of the costs of the suit, — to lose ■all of such expenditures of money as well as his efforts and services in the event of an adverse judgment and in the event of success to receive as compensation for his services and for the risk incurred in the payment of expenses a portion of the land involved in the original suit.
Champerty and maintenance have been variously defined in the books, ancient as well as modern. Courts and text writers seem to have found some difficulty in stating precisely what they consisted of in England. Perhaps the following definition comes as near as possible to stating the generally accepted view on the subject. Champerty (campum partiré, to divide the land) is “a bargain with a plaintiff or defendant in a suit for a portion of the land or other matter sued for in case of a successful termination of the suit 'which the champertor undertakes to carry on at his own expense.” — Bouvier. Maintenance is “a malicious or at least officious interference in a suit in which the offender has no interest, to assist one of the parties to it against the other with money or advice, to prosecute or defend the action without any authority of law.” — Bouvier.
There were old English statutes defining champerty and maintenance and making them punishable offenses. Whether or not- and to what extent champerty and maintenance were offenses under the unwritten law of England existing prior to' the enactment of those statutes is a matter upon which the authorities are not agreed or at least some doubt is expressed here and there that they were offenses. The supreme court of the United States, in Peck v. Heurich, 167 U. S. 624, 629, 630, said: “According to the common law as generally recog*156nized in the United States, wherever it has not been modified by statute, and certainly as prevailing in the District of Columbia, an agreement by an attorney at law to prosecute at his own expense a suit to recover land in which he personally has and claims no title or interest present or contingent, in consideration of receiving a certain proportion of what he may recover, is contrary to public policy, unlawful and void as tending to stir up baseless litigation.” The preponderance of authority is, perhaps, to the effect that the rule was a part of the unwritten law of England. However that may be, it may, in view of our conclusion that these provisions of the common law, whether unwritten or statutory, are not, as such, in force in this Territory, be assumed for the purposes of this opinion that the rule was a part of the unwritten law.
So, also, for the same reason, it is unnecessary to determine in this case whether the “common law” of England which by Sec. 1 of the Revised Laws is made law in Hawaii includes early English statutes such as those mentioned above. In Rooke v. Queen's Hospital, 12 Haw. 375, 380, the court suggested the possibility of the question but expressed no opinion upon it. No definite decision upon it has been rendered as far as I know.
Before considering whether or not the common law of England relating to champerty and maintenance in general and to contracts such as that under consideration in particular is by reason of the provisions of Sec. 1 of the Revised Laws in force in this Territory, it may be well, assuming for the moment that such is not the case, to consider whether as a matter of public policy such contracts ought to be declared void.
In olden England such contracts were deemed to be contrary to sound public policy because it was believed that if they were permitted the result would be to encourage and facilitate the stirring up of unworthy litigation. Various considerations contributed to this view. In the first place, judges as a rule *157were more or less corrupt aud the administration of justice was in disrepute. It was believed that powerful lords could and did control the judges and influence judicial decisions in their favor irrespective of the merits of controversies. The position of attorneys, too, was materially different then from what it is now. They were not supposed to' receive any compensation as such for their services but merely an honorarium or gift at the option of the client. Attorneys could not demand or expect to receive pay as a matter of right. They were not permitted to make 'any contract whatsoever with their clients. It was deemed to be for the best interests of the community that the powerful lords owning large landed estates should continue in the ownership and possession of such estates and that others should not acquire title to any part of such property. The discouragement of litigation against the lords was for that as well as for other reasons regarded as desirable. The assignment of choses in action was also prohibited. It was largely for these reasons that the rule grew up and was finally embodied in statutes prohibiting any sort of intermeddling in the law suits or causes of action of others. The discouragement in the beginning went as far as to prohibit an offer voluntarily to testify in a pending suit, aid to a litigant to find a lawyer, and friendly advice to a neighbor as to his legal rights (Gilman v. Jones, 5 So. 785, 787), as well as the furnishing of money for the conduct of the suit and the undertaking to bear the expenses and to furnish professional services as attorney in consideration of a division of the amount to be recovered.
In some of the states, by reason of provisions of their fundamental laws, the common law rule on this subject has been declared to be the law in those jurisdictions. In still other states where the common law has been held as such not to be in force, the same rule in milder and modified form has been declared to exist as a requirement of public policy. In these the argument generally indulged in is, in brief, that to permit *158attorneys "to make such contracts is to facilitate litigation, to encourage the bringing of groundless suits and to compel defendants to make unjust compromises. In the older English decisions the attorneys so conducting suits are referred to as “pests of society” ( 4 Blackstone’s Com., p. 135) and the reasoning in the class of American decisions last referred to seems to proceed very largely upon the view that attorneys are such pests and unworthy of a reasonable amount of confidence and trust.
This reasoning does not appeal to me. I recognize that a majority, perhaps a great majority, of the state courts have taken the view that such contracts are contrary to public policy. Key v. Vattier, 1 O. 132, 143; Boardman v. Thompson, 25 Ia. 487; Adye v. Hanna, 47 Ia. 264; Gammons v. Johnson, 76 Minn. 76; Moreland v. Devenney, 72 Kans. 471; Thurston v. Percival, 1 Pick. 415; Martin v. Clarke, 8 R. I. 389, 401; Re Evans & Rogers, 22 Utah, 366; Allard v. Lamirande, 29 Wis. 502; Hamilton v. Gray, 31 Atl. (Vt.) 315; Lytle v. State, 17 Ark. 609, 663; Gilman v. Jones, supra. I prefer the reasoning of the minority. Hassell v. Van Houten, 39 N. J. Eq. 105, 109; Schomp v. Schenck, 40 N. J. L. 202; Manning v. Sprague, 148 Mass. 18, 20; Bentinck v. Franklin, 38 Tex. 458, 472-474; Mathewson v. Fitch, 22 Cal. 86, 94; Reece v. Kyle, 49 O. St. 475, 480-488; and, particularly, the brief of plaintiffs’ attorneys in Key v. Vattier, 1 O. 132, 135-142. The latter appeals to me as being sound and more in keeping with the progress of society in general and of the administration of justice in particular, and with the development of commerce which has ensued since the days in which the rule had its origin. There is nothing inherently wrong or immoral in such contracts. They are not mala in se. The feudal system no longer exists. There is no class of powerful lords on the one hand and of ignorant poor on the other in danger of being crushed. The administration of justice is in safe hands and any aTuse *159of judicial power is now the rare exception. If a suit is groundless the court will easily ascertain that fact and fearlessly declare it. Attorneys have long been regarded as entitled to a reasonable compensation for their services and to the right to sue for the same and, subject, perhaps, to certain limitations, to contract generally with their clients. Purely contingent fees are now regarded in many jurisdictions as legitimate. Perry v. Dicken, 105 Pa. St. 83, 89; Jewell v. Neidy, 61 Ia. 299, 300; Dockery v. McLellan, 61 N. W. (Wis.) 733, 735. The supreme court of the United States so regards them, at least in proceedings against the United States government or before some of its departments. Taylor v. Bemiss, 110 U. S. 42, 45. Choses in action are now assignable by statute in many jurisdictions and so, also, in Hawaii. E. L.. Sec. 1139. The view has, of course, been long since exploded that a stranger may not legitimately aid a litigant by furnishing him with evidence .or- by appearing as a witness without a subpoena. Eeputable members of the bar everywhere enter into contracts for compensation contingent upon the success or the failure of their clients and do so without reproach from themselves or from others. It is, indeed, unfortunately true that some attorneys there are in every community who abuse their privileges and would abuse this privilege to make such contracts and who, making them, would bring groundless suits and stir up baseless litigation, but, on the other hand, it is also true that there are many persons financially poor, and I think that this constitutes by far the larger class, who have worthy causes of action, and who would wholly fail to obtain redress for their grievances if they were not at liberty to enter into contracts such as this with attorneys. Whether the motive of the attorney in entering into' the contracts be purely the prospect of personal gain or be purely a desire to aid the weak or is,both is immaterial. When we consider whether or not public policy requires the invalidating of all such con*160tracts we must weigh the advantages and disadvantages of freedom of action, and I think that in this instance the advantages far outweigh the disadvantages.
Among the reforms in England and in this country occurring since the date of the acts relating to champerty and maintenance “may be mentioned, the enactment of the statutes for the limitation of actions, the statute of frauds, the extension of the action for malicious prosecution and that for awarding costs against unsuccessful parties. These changes have contributed materially to the discouragement of groundless and vexatious litigation.” Reece v. Kyle, 49 O. St. 475, 483.
If it is lawful for an attorney to conduct litigation upon a contract for purely contingent fees without agreeing to advance the cost of the litigation, if, in other words, liberty to make áuch an agreement does not tend to unduly encourage litigation, how much more true, it seems to me, that litigation is not encouraged where the attorney in addition undertakes to bear ■all the costs and expenses of the proceedings. In the latter instance he is running the risk of losing not only his own services but also his cash outlays, and this necessarily adds responsibility and tends to make him more cautious before advising his client to enter suit or to continue the proceedings. Even unscrupulous attorneys would ordinarily be moved by this consideration not to enter into the prosecution of a groundless claim or defense.
Again, this is an agricultural community. A large number of our population is composed of laborers, poor in this world’s goods, who at times receive bodily injuries in the course of their employment caused by the negligence of their employers. With them the denial of the right to enter into sirch contracts will often mean a denial of a remedy for their just grievances. Our courts are so administered that, I believe, unscrupulous lawyers will find but little encouragement for the prosecution of groundless claims, and defendants, more often *161the wealthier parties to actions, will not feel constrained to enter into unjust compromises. They may well feel confident that upon allowing the adverse claim to be presented to our judicial tribunals the latter will, if the claim be not meritorious, readily say so and award judgment in favor of such defendants. On the other hand, if the claim be meritorious, by all means let it be presented to the courts even though a part of the proceeds will finally go to the attorney and not to the client. Commercial transactions in this age are becoming more numerous and more highly favored. The right to contract with reference to every species of property has undergone large development since early days and is now better understood and more highly valued.
The right to make contracts of this particular kind should not be abridged or denied on any ground of public policy unless there is an evil clearly calling for a remedy. In my opinion there is no such evil, and therefore no justificaton for the declaration that such contracts are void as being contrary to public policy.
Let us return now to the second question above mentioned as to whether or not the common law rule is in force in this jurisdiction. Sec. 1 of the Revised Laws declares in part that “the common law of England as ascertained by English and American decisions is hereby declared to be the common law of Hawaii in all eases except as otherwise provided by the constitution or the laws of the Hnited States or by the laws of the Territory of Hawaii or fixed by Hawaiian judicial precedent or established by Hawaiian usage.” I think that the present-case falls within some of these exceptions. In part this is a case “otherwise expressly provided * * * _ by the laws of the Territory of Hawaii.” By Statute, choses in action, including rights of action, are now assignable. Part of the cause and theory sustaining the old common law rule is thus wiped out. Our statute is inconsistent with the old rule. Neither cham-
*162perty nor maintenance is a criminal offense in this Territory as it was at common law. Mossman v. Hawaiian Government, 10 Haw. 421, 426. In part it is “otherwise * * * fixed by Hawaiian judicial precedent.” In the Mossmcm case just cited it was held that that part of the common law of maintenance which rendered -a conveyance by a disseisee to a third party void as to the disseisor is not in force in Hawaii. In Henrique v. Paris, 10 Haw. 408, 413, 414, it was held that another part of the common law on the subject, to wit, the prohibition against a grantee entering for breach of condition of a lease outstanding from the grantor at the time of the purchase is likewise not law here. In the latter case the court said, inter alia: “The old rule is a provision of the feudal law and grew out of a state of society which does not exist in these Islands. There is not now 'and here the necessity that there was in England in the Middle Ages for laws against champerty and maintenance to prevent the stirring up of suits for purposes of oppression. * * * The reasons for this rule hav-
ing ceased the rule itself should also cease.”- While the court said this, it is true that it also said, “And there can be little doubt that lessors’ grantees have hitherto in these Islands acted accordingly and exercised the right of entry for breach of condition, although we do not know of any judicial proceeding directly upon the subject. * * * We are of the opinion that the old common law rule in question is not law here because it is 'otherwise established by Hawaiian national usage.’ ” In Rooke v. Queen's Hospital, 12 Haw. 375, 380, this court said, of Sec. 1, R. L., “And since the enactment of that statute the previous rejection of certain material parts of a system has been regarded as amounting to a rejection of other parts.” See, also, Wildey v. Crane, 63 Mich. 720, 724.
Perhaps the entering into contracts to bear the expenses of litigation has not been common amongst attorneys in this jurisdiction and yet there have been such contracts. Reputable *163members of the bar Have -undertaken litigation upon those terms without the disapproval as far as I know of the remainder of the bar. As far as there has been any Hawaiian usage on the subject it has been one permitting the practice.
To summarize, then, on this particular subject, in at least two respects the ancient common law rule has been declared by Hawaiian judicial precedent not to be the law here. Some of the judicial utterances on the subject have been broader and would seem to justify the inference that the court in those eases regarded all of the common law on the subject to be inapplicable to Hawaii and not in existence here. In any event that which remains of the rule ought not to be considered as now in force in this jurisdiction. One at least of the rules which gave rise to the provision has been expressly negatived by local statute. Usage, as far as there is one,' is against it, and as we have seen in the discussion above the reasons for the rule do not exist in these Islands. For all of these reasons I am of the opinion that the common law on the subject is not in force in Hawaii and that the contract in question is not void.
The chief justice requests me to say that he fully concurs in the foregoing statement on the subject of champerty and maintenance.
The verdict of the jury read in connection with the evidence shows unmistakably that the jury awarded the plaintiff in addition to other items the sum of $250 as a fee paid to E. C. Peters and $50 as a fee paid to C. B. Hemenway, both of the bar, for professional services rendered. Evidence was given tending to show that the plaintiff paid these amounts to the two attorneys respectively, that to Peters being for preparing a brief in the Maile case on the appeal to the supreme court of the United States, and that to Hemenway being for obtaining from the records and officials in Washington certain information desired by Peters and cabling the same to him. The *164evidence is at best very meager as to the character and extent of the services rendered by each of the attorneys, but it may be assumed for the purposes of this opinion that it was sufficient to support a finding in a general way of what the services consisted of. There was absolutely no testimony, however, by either of the attorneys mentioned and, no other evidence on the subject as to whether or not the amounts charged and paid were reasonable compensation for the services rendered. Neither of the attorneys made any statement on the subject, no. experts were called to give their opinions and no attempt was made to show that the amounts paid were a customary charge for such services. From the mere fact of the rendition of the services or the making of the charges by the attorneys no inference can be drawn that the chai’ges were reasonable. This is not a reflection upon the attorneys making the charges. What is a reasonable fee in a given case is often a matter of difficulty for an attorney, however conscientious, to determine either for himself or for another. It might with some force be contended that a trial judge sitting alone or a court of judges could make a finding as to the reasonable value of professional services by an attorney Avithout express evidence of such value; but in that event it could at least be said that the judge or judges had by reason of their prior experience at the bar in the same community qualified themselves as experts to form and express opinions on the subject. With a jury, however, not even that much can be said in favor of such a rule. The jurors are men of various occupations in life other than the practice of the law. Only in rare instances at best will a juror be found who has any practical knowledge as to the value of an attorney’s services or as to the varying degrees of complication and difficulty presented in different cases and proceedings. What did the jurors in this case know of the nature of the questions of law to be studied and briefed by counsel ? What did they know as to whether the authorities were uniform or in *165conflict upon any one or more of the issues? What did they know of the time or care or thought required to analyze the case, and to ascertain the reasoning and the law applicable? Without the evidence of those who are competent to give testimony in such cases it would be unsafe and impracticable to ask of such jurors a statement of what an attorney’s services are worth in any given case. The following authorities, while not precisely in point, are worthy of examination: Weeks, Attorneys, p. 696; Vilas v. Downer, 21 Vt. 418, 423; Ward v. Kohn, 58 Fed. 462, 463, 464; Stow v. Hamlin, 11 How. Pr. (N. Y.) 452, 453. 454; Stanton v. Embrey, 93 U. S. 548; Railway v. Wallace, 136 Ill. 87, 92; Knight v. Russ, 77 Cal. 410. 413; Clark v. Ellsworth, 104 Ia. 442, 451.
In my opinion the evidence on this subject of fees was insufficient to support a verdict for the plaintiff. He did not sustain the burden which the law places upon him to prove the reasonableness of the fees paid.