(concurring specially). I concur in the affirmance of the judgment for the reasons assigned in the opinion of the court as prepared by Mr. Justice Bronson, except wherein it is held that champerty necessarily vitiates and renders void a contract for the employment of an attoimey. By thus qualifying my concurrence in the main opinion, I do not wish to be understood as either contenancing or discountenancing so-called champertous . agreements.
This agreement being void for the other reasons assigned, I deem it unnecessary to consider whether or not its champertous character would of itself vitiate it. This might depend upon the circumstances, and while I am not willing to say that the circumstances in the instant *343case might not justify holding the contract void on that ground, I am not prepared to hold that under all circumstances such agreements are void. It is unnecessary to so hold. The question is primarily one of public policy and as such it has been somewhat discussed in the-prior decisions of this court. See Woods v. Walsh, 7 N. D. 376, 75 N. W. 767; Rohan v. Johnson, 33 N. D. 179, L.R.A.1916E, 64, 156 N. W. 936, Ann. Cas. 1918A, 794; Greenleaf v. Minneapolis, St. P. & S. Ste. M. R. Co. 30 N. D. 112, 151 N. W. 879, Ann. Cas1917D, 908. In these cases it has been shown that the reasons which formerly existed for holding contracts involving champerty and maintenance void no longer obtain, at least in equal degree. I would not be disposed to differentiate between legal and illegal agreements on the basis that they are differentiated in some jurisdictions, where-distinctions are recognized between agreements which provide that the attorney is to have for his services a portion of the proceeds and agreements that he is to have an amount equivalent to a certain percentage-of the proceeds and a lien upon the proceeds for payment. See Blaisdell v. Ahern, 144 Mass. 393-395, 59 Am. Rep. 99, 11 N. E. 681.
Such distinctions are based upon no real differences of situation or-of actual tendency, and the same is true as to maintenance. In my view, one contributes quite as much to the maintenance of an action, that might not otherwise be brought, by agreeing to pursue it for a. contingent fee, as he does by agreeing to contribute something in the-way of costs. The ultimate effect is, generally, when the attorney stipulates for a contingent, fee, that a suit is brought that would not otherwise have been brought, because of the inability of the client to-pay a stipulated fee. Without such arrangements there would often be a failure of justice. There is yet a legitimate scope for the contingent fee. Greenleaf v. Minneapolis, St. P. & S. Ste. M. R. Co.. supra. I mention these matters here merely to indicate that, in my judgment, there is no occasion either to define illegal champerty and maintenance upon the basis of the presence or absence of stipulations-insuring against costs and actually sharing in the proceeds of the-litigation, or to characterize all such agreements as void because they result in giving those who are not otherwise interested an incentive to-pursue litigation. As said above, there are other arrangements that: have the same effect.
*344There is another reason why I wish to qualify my concurrence. In the opinion of the court it is said that “common honesty as well as .legal ethics prevent the appellants from now trying to assert that that which they believed in exercising their best judgment was a valid claim, and which the state court determined to be a valid and just claim, was of doubtful validity.” I can see no occasion for characterizing the action of the appellants in presenting the doubtful featiires of the county’s claim as being dishonest. I can see no question of honesty involved in arguing to this court or any other court that the claim which the county had and which it agreed to share with the attorney was of doubtful validity. Nor can I see the force of the suggestion that an attorney, in bringing an action, is subsequently precluded from asserting what he actually believes to be the case; namely, that the claim upon, which the action was founded was of somewhat uncertain legal validity. He might have honestly so believed at the time the action was instituted and he might have honestly so advised his client. The client would have had a perfect right to bring the action even though the claim were somewhat doubtful. I can see nothing in these circumstances to prevent the attorney from subsequently asserting his belief in the doubtful character of the claim, so long as it is not done to his client’s detriment. And it is inconceivable to me that his assertions to this effect can be regarded as dishonest.
As a matter of fact this court knows judicially that approximately two thirds of the claim was, at the time the action was brought, so gravely doubtful in character, it being based upon interest, that this court, in Dickinson v. White, 25 N. D. 523, 49 L.R.A.(N.S.) 362, 143 N. W. 754 (which was pending for decision at the time the action was brought by the county), upon petition for rehearing, receded from views previously expressed, and held that interest, as against sureties on official bonds, could be recovered only from the date of the notice to the sureties of the breach or from the date of the demand. This.was held in a companion case to that brought by Murtha on behalf of the county, having arisen out of the same defalcation. It was pending when that-case was brought and was undecided at the time the judgment was rendered in the county’s action and at the time of the settlement in the Federal court.
I agree, however, with the proposition asserted in the opinion of the *345court that the same ethical considerations which render the contract for employment invalid also operate to prevent the contention of the appellants, based upon the doubtful character of the county’s claim, from having any weight in support of the claim for fees. The contract for fees being void for the reasons assigned, is not legally revived or reinstated by the good fortune of the. county in having its doubtful claim fully satisfied. ..........