ON BE HEARING.
Day, J.Upon the petition of appellant a rehearing herein was granted. Some of the points made in the petition for rehearing require notice.
*2859. pleading: cííampertous contract. I. When the cause was originally submitted no authority was cited upon either side, upon the question of champerty. Appellant now calls our attention'to Barker v. Barker, 14 Wis., 131, which cites Webb v. Armstrong, 5 Humph., 379, and Hunt v. Lyle, 8 Yerg., 142. These cases hold that, whilst champerty may not be shown as a defense to the action, yet, when it appears that a plaintiff is prosecuting an action under a champertous arrangement between himself and his attorney, the action should be abated, leaving the plaintiff at liberty to commence anew his action under a contract not tainted with champerty.
In Barker v. Barker, supra, which is the only case in which the question, received any considerable attention, the court said: “The question whether a suit is prosecuted upon a champertous agreement is one outside of the real merits of the case. And although an issue might possibly be made on it, yet we think it need not necessarily be pleaded, but that if it comes to the knowledge of the court in any proper manner, it will refuse longer to entertain the proceedings. It would seem to stand upon similar grounds with an action for divorce prosecuted by collusion between the parties. The court, on arriving at a knowledge of the fact, would not be confined to the strict rules applicable to evidence offered on the trial of the case, though it undoubtedly should not proceed upon mere, suspicion, or without giving opportunity for avoiding the alleged champerty by proper proofs on the other side. In this case the evidence is such as leaves no doubt in our minds of the existence of the agreement, and its existence is assumed in the brief of counsel for appellants.”
In this case no question seems to have been made as to the admissibility of the evidence, and it clearly established the existence of a champertous agreement between the attorney and his client. In the case at bar the answer is merely a general denial of each allegation of the petition. Upon cross-examination of plaintiff defendant asked the following questions: “State what per cent, if any, of the recovery, if any, you have contracted to pay your attorneys ? At whose expense has this suit thus far been carried on? State whether Board-*286man, Brown & Williams did not pay the expenses of procuring witnesses for the first term of this court, after the commencement of this cause, out of their own funds, and by agreement with you? State whether or not you have entered into any written contract with your attorneys for a division of the amount recovered in this case?”
These questions were objected to because immaterial and irrelevant to the issue, incompetent and improper matter of cross-examination; and the objection was sustained.
It is to be observed that the effect of the matter sought to be proved is to abate the action. Section 2732 of the Code, provides that “ matter in abatement may be stated in the answer .or reply, either together with or without causes of defense in bar.”
And section 2704provides: “Under a denial of an allegation, no evidence shall be introduced which does not tend to negative some fact the party making the controverted allegation is bound to prove.”
Under these provisions of our statute we are well satisfied that proof of matter tending to abate the action, if objected to, ought not to be received, if such matter has not been pleaded.
Any other construction would be productive of great hardship and confusion. A party might be called upon to meet an important issue, suggested for the first time in the cross-examination of his own witnesses, or the testimony of those produced for the defense. If, as is said in Barker v. Barker, the court ought not to proceed without giving opportunity for avoiding the alleged champerty by proper proofs on the other side, the plaintiff ought, in a proper case, to have a continuance, for the purpose of procuring testimony, and we would thus have the anomaly of a continuance for the purpose of procuring proof upon a question not put in issue by the pleading.
Without further elaboration of this question we have no doubt that the objection to the proffered testimony was jiroperly sustained.
II. In the discussion of the eighth point reviewed in the *287foregoing opinion, a mistake was made in stating that the jury found specially that plaintiff’s arm was broken on the freight train, October 1st, 1870.
The jury found that plaintiff’s arm was not broken by the accident on the freight train, October 1st, 1870, but that it was broken at the time of the accident at Moingona on the day preceding.
The jury also returned the following special findings: “At the time of the accident to the freight train was plaintiff thrown against the conductor’s desk? Ans. Yes. Was the jffaintiff thrown by the freight train accident with his shoulder and neck against the stove in the car? Ans. Yes. Did the plaintiff receive any injury at Moingona or at the freight train accident which has caused permanent disability to his arm? Ans. Yes. Was the present condition of plaintiff’s arm caused by an injury received October 1, 1870, on defendant’s freight train? Ans. Yes.”
These questions were submitted to the jury by. the defendant. The answers clearly show the existence of circumstances from which the jury might well have found some injury was sustained at the happening of the accident on the freight train. And the last finding of the jury involves a distinct assertion that plaintiff sustained an injury October 1, 1870, on the freight train. The general verdict for plaintiff also involves and includes such a finding, for the jury find the arm was hroTcen at Moingona, and, on account of the accident occurring there, the jury, under the direction of the court, found for defendant.
The jury did, then, find that injuries were sustained at the time of the freight train accident, for which the plaintiff was entitled to recover something. This being the case, the cause of the shrunken condition of the arm could affect only the measure of damages, as before said.
The verdict is small, $ 1,200.' It is not claimed that it is excessive. Upon the contrary it is conceded that it is not too large, if plaintiff is entitled to recover anything.
Under this state of facts the sjsecial finding of the jury that the present condition of plaintiff’s arm is not due to the *288substantial disuse of it for tbe past two years and a half is immaterial, and, even if not supported by tbe evidence, tbe judgment ought not, on that account, to be set aside.
These are the only points in the petition for rehearing, which seem to us to require notice.
The opinion is refiled, and the judgment
Affirmed.