¶1Tbe 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.”
¶2It 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.
¶3We 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.
¶4By the Court. — Judgment affirmed.