¶1On petition for a rehearing.
¶2An earnest petition, and argument in support thereof, have been filed in this cause, for a rehearing, on two points in the opinion and decision rendered therein, viz.:
¶31. That which holds that the defect in commencing a suit, by a minor, without a next friend, may be cured by the appearance, and filing, by permission of the court, of the proper undertaking, by a next friend, while the suit is pending.
¶4On full consideration, the court adheres to this decision, as establishing the better rule of practice, and as a decision authorized by our code of practice, and the decisions already made under it.
¶52. That which asserts that third parties could not take advantage of champerty in a contract.
¶6This proposition contained in the opinion of the court is erroneous, but the error is harmless in this ease. It does not approve of any error committed by the court below.
¶7Champertous contracts may be brought before the court in two or more ways, viz.: by being the foundation of a suit, pérhaps of a defence. In such cases the question upon them arises between the parties to them, and they are held void. Scobey v. Ross, 13 Ind. 117; West v. Raymond, 21 Ind. 305; Coquillard’s Adm’r v. Bearss, 21 *206Ind. 479 ; Lafferty v. Jelley, 27 Ind. 471; Rowe v. Beckett, 30 Ind. 154. See Dumont v. Dufore, 27 Ind. 263.
¶8Another mode in which these contracts maybe brought before the court is, where they are not the foundation of a pleading, and questions upon them do not arise between the parties to them, but, as is claimed in this case, where the suit between the parties is prosecuted by the plaintiff against the defendant, by the attorney of the plaintiff', under a champertous contract with him.
¶9The fact came out in this case incidentally upon the trial. "When such fact did appear, if it did clearly appear to the court, the court, perhaps of its own motion, might have dismissed the action on the ground of public policy. Barker v. Barker, 14 Wis. 131; Webb v. Armstrong, 5 Humph. 379; Hunt v. Lyle, 8 Yerg. 142.
¶10But the failure to do so was not an error of which the defendant (appellant) can complain. Had the appellant moved for such dismissal, and had the court below denied the motion, the appellant properly reserving an exception to the denial, the question of error in the action of the court would be before us. But no such motion was made by the appellant, and no error of the court below, upon this point, is shown. The non-action of the court was not excepted to at the time.
¶11The petition for a rehearing is overruled.