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I. Of Maintenance in general.
- 32 H. 8. c. 9.]
[3 Ed. 1. c. 25.-28 Ed. 1. c. 11.. - 33 Ed. 1. st. 3.
1 R. 2. c. 9. — 31 El. c. 5.] III. Of Embracery in particular.
[32 H. 8. c. 9. 6 G. 4. c. 50.]
In the country.
In courts of justice.
I. DE Paintenance in general. Maintenance (manu tenere) is an unlawful taking in hand or upholding of quarrels or suits to the disturbance or hindrance of common right. 1 Haw. c. 83. 1. 4 Blac. Com. 134. 1 Russ. 266.
And it is twofold ; technically termed ruralis et curialis.
One in the country; as where one assists another in his pretensions to certain lands, by taking or holding the possession of them for him by force or subtlety; or where one stirs up quarrels and suits in the country, in relation to matters wherein he is no way concerned. And this kind of maintenance is punishable at the king's suit by fine and imprisonment, whether the matter in dispute any way depended in plea or not; but it is said not to be actionable: id. $$1.2.
Another in the courts of justice : where one officiously intermeddles in a suit depending in any such court, which no way belongs to him, by assisting either party with money or otherwise in the prosecution or defence of any such suit. 1 Haw. c. 83. $$ 1, 2.
of this second kind of maintenance, there are three species:
First, where one maintains another, without any contract to have part of the thing in suit; which generally goes under the common name of maintenance.
Secondly, where one maintains one side to have part of the thing in suit ; which is called champerty.
Thirdly, where one laboureth'a jury; which is called em. bracery. Id. 3.
But it seemeth to be agreed, that wherever any persons claim a common interest in the same thing, as in a way, churchyard, or common, by the same title, they may maintain one another in a suit relating to the same. Id. § 18.
Also, that whoever is any way of kin or affinity to the party may counsel and assist him, but that he cannot justify the laying out any of his own money in the cause unless he be either father, son, or heir apparent. (a) Id. s 20.
(a) It is curious and not altogether useless to see how the doctrine of maintenance has from time to time been received in Westminster Hall. At one time not only he who laid out money to assist another in his cause, but he that by his friendship or interest saved him an expence which he would otherwise be put to, was held guilty of maintenance. Nay, if he officiously gave evidence, it was maina tenance; so that he must have had a subpæna, or suppress the truth. That such doctrine, repugnant to every honest feeling of the human heart, should be soon laid aside, must be expected. Per Buller J. in Master v. Miller, 4 T. R. 340.
Exceptions; common interest.
Also, that any one in charity may lawfully give money to a Charity. poor man, to enable him to carry on his suit. 1 Haw. C. 83. $ 26. 1 Russ. 179. 4 Blac. Com. 135.
It seemeth that all maintenance is not only malum prohibitum How punishby statute, but is also malum in se, and strictly prohibited by the able by the common law, as having a manifest tendency to oppression; and common law, therefore it is said that all offenders of this kind are not only
as tending to liable to an action of maintenance at the suit of the party grieved,
oppression. wherein they shall render such damages as shall be answerable to the injury done to the plaintiff, but also that they may be indicted as offenders against public justice, and adjudged thereupon to such fine and imprisonment as shall be agreeable to the circumstances of the offence. Also it seemeth that a court of record may commit a man for an act of maintenance done in the face of the court. 2 Inst. 212. 1 Huw. c. 83. (36.
By stat. 1 Ed. 3. st. 2. c. 14., no person shall take upon him to i Ed. 3. st. 2. maintain quarrels, nor parties in the country, to the disturbance of c. 14. the common law.
able by statute. By stat. 20 Ed. 3. c. 4., none shall take in hand quarrels other
20 Ed. 3. c. 4. than their own, nor the same maintain, by them nor by other, for gift, promise, anity, favour, doubt, fear, nor other cause, in disturbance of law and hindrance of right.
By stat. 1 R. 2. c. 4., none shall take or sustain any quarrel by i R. 2. c. 4. maintenance in the country, nor elsewhere, on pain, if he is a great officer, as the king by advice of the lords shall ordain : if he is a lesser officer, he shall forfeit his office, and be imprisoned and ransomed at the king's will : and all other persons, on pain of imprisonment, and ransom at the king's will.
And by stat. 32 H. 8. c. 9. § 3., no person shall unlawfully 32 H. 8. C. 9. maintain or procure any unlawful maintenance in any action, demand, or complaint, in any court having power to hold plea of lands ; nor shall unlawfully retain any person for maintenance of any plea to the disturbance or hindrance of justice ; on pain of 101., half to the king, and half to him that shall sue within one year.
It seemeth, that in an information on this statute, it is not suffi. Maintenance cient to say that the defendant maintained the party, without must be averred
to be unlawful. adding that he did it unlawfully. i Haw. c. 83. § 45.
It is said to have been adjudged, that maintenance of a suit in None in a spiritual court is neither within this nor any other statute con
spiritual court. cerning maintenance. Id. c. 83. $ 46.
It bath been holden that in an information on this statute, it is Plea must be necessary to shew that a plea was depending ; and therefore that pending. it is not sufficient to say that a bill was exhibited. Id. c. 83. § 47.
A counsellor, having received his fee, may lawfully set forth Counsel. his client's cause to the best advantage; but can no more justify giving him money to maintain his suit, or threatening a juror, than any other person. An attorney also, when specially retained, Attorney. may lawfully prosecute or defend an action, and lay out bis own money in the suit; but an attorney who maintains another is not justified by a general retainer to prosecute for him in all causes. Nor can an attorney lawfully carry on a cause for another at his own expence, with a promise never to expect repayment; and it is said to be questionable whether solicitors, who are no attorneys,
can, in any case, lawfully lay out their own money in another's
1 Russ. 179.
3 Ed. 1. c. 25.
II. Of Champertu in particular. What it is.
Champerty (from campi parte) is the unlawful maintenance of a suit in consideration of some bargain to have part of the lands or thing in dispute, or part of the gains. 1 Haw. c. 84. $ 1. 1 Russ. 179.
Every champerty is maintenance, but every maintenance is not champerty ; for champerty is but a species of maintenance, which
is the genus. 2 Inst. 208. How punish- Champerty was an offence at the common law, and as such is able by the punishable in like manner as hath been expressed in treating of
maintenance in general. 2 Inst. 208.
By stat. 3 Ed. 1. c. 25., no officer of the king, by himself, nor How punish- by other, shall maintain pleas, suits, or other matters hanging in the able by statutc.
king's courts, for lands, tenements, or other things, for to have part or profit thereof, by covenant made between them ; and he that doth
shall be punished at the king's pleasure. Covenant, any That is, by agreement either by word or writing; for albeit in
the common sense, a covenant is taken for an agreement by writing, yet in a larger sense it is taken (as it is here) for an agree
ment by writing or by word. 2 Inst. 209. 28 Ed. 1. c. 11. By stat. 28 Ed. 1. c. 11., no person whatsoever, for to have part
of the thing in plea, shall take upon him the business that is in suit, nor shall
any upon such covenant give up his right to another; Forfeiture to on pain that the taker shall forfeit to the king the value of the the king. part he has purchased for such maintenance.
But no person shall be prohibited hereby to have counsel of pleaders, or of men learned in the law, for their fee; or of his parents and next friends.
By stat. 33 Ed. 1. st. 3., any person who shall take for mainte
nance or the like bargain, any suit or plea against another, he and Imprisonment. also they who consent thereto shall be imprisoned three years, and
make fine at the king's pleasure. Vide Tomlins's Statutes, vol. i.
And by stat. 1 R. 2. c. 9., a feoffment of lands, or gift of goods, Feoffment or for maintenance, shall be void, and the person disseised shall recover gift for main- the lands against the first disseisors with double damages, without tenance, void.
having any regard to such alienations.
But it is said that it shall only be void with regard to him that hath right, and not between the feoffor and feoffee. 1 Inst. 369.
And by stat. 31 El. c. 5. $4., the offence of champerty may be Venue. laid in any county, at the pleasure of the informer.
33 Ed. 1. st. 3.
1 R. 2. c. 9.
31 El. c. 5.
What it is. Interference, &c. with a juror.
III. DC Embracery in particular. It seems clear, that any attempt whatsoever to corrupt or influence or instruct a jury, or any way to incline them to be more favourable to the one side than to the other, by money, promises, letters, threats, or persuasions, is a proper act of embracery, whether the juror on whom such attempt is made give any verdict or not, or whether the verdict given be true or false. 1 Haw. c. 85. $ 1.
And the law so far abhors all corruption of this kind, that it By a stranger. prohibits every thing which has the least tendency to it, what precious pretence soever it may be covered with; and therefore it will not suffer a mere stranger so much as to labour a juror to appear and act according to his conscience. 1 Haw. c. 85. $ 2.
But any person who may justify any other act of maintenance By one not a may safely labour a juror to appear and give a verdict according stranger. to his conscience : but no one whatsoever can justify the labouring a juror not to appear. Id. c. 85. 96.
There is no doubt but that offences of this kind do subject the How punishoffender either to an indictment or action, in the same manner as
able by the
common lav all other kinds of unlawful maintenance do by the common law. Id. c. 85. $ 7. By stat. 32 H. 8. c. 9. $$ 3. 6., no person
How punishjurors on pain of 101., half to the king, and half to him that shall able by statute. sue within a yeur.
Stat. 6 G. 4. c. 50. § 61. provides, enacts, and declares, “ That 6 G. 4. c. 50. notwithstanding any thing herein contained, every person who Embracers and shall be guilty of the offence of embracery, and every juror who corrupturous shall wilfully or corruptly consent thereto, shall and may be fine and imrespectively proceeded against, by indictment or information, and prisonments be punished by fine or iniprisonment, in like manner as every such person and juror might have been before the passing of this act."
Indictment for Maintenance.
in the year of the reign of
and see tit. Trespass.
malicious Jnjuries. UNDER this title are comprised all such offences against the
persons or the property of individuals, as are not distinctly classed within some other description of criine in this work; and they will be found to result chiefly from the enactments of 9 G.4. c.31. and of 7 & 8 G.4. c. 30., the former entitled “ An act for consolidating and amending the statutes for offences against the person," the latter," for consolidating and amending the laws relative to malicious injury to property."
I. To the Person.
[9 G. 4. c. 31.] II. To Property.
[7 & 8 G. 4. c. 30.]
I. Yalicious Injuries to the Person. 9 G. 4. c. 31. By 9 G. 4.c.31. § 11., “ If any person unlawfully and maliciously Attempts to shall administer (a), or attempt to administer to any person, or shall murder, when evidenced by
cause to be taken by any person, any poison or other destructive certain acts,
thing, or shall unlawfully and maliciously attempt to drown, sufshall be capital. focate, or strangle any person, or shall unlawfully and maliciously
shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to murder such person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and,
being convicted thereof, shall suffer death as a felon." Shooting at, or $ 12." If any person unlawfully and maliciously shall shoot at stabbing, cut- any person, or shall, by drawing a trigger, or in any other manner ting, or wound.
attempt to discharge any kind of loaded arms at any person, or ing any person shall unlawfully and maliciously stab, cut, or wound any person, maim, &c. shall with intent, in any of the cases aforesaid, to maim, disfigure, or be capital, pro- disable such person, or to do some other grievous bodily harm to vided the case such person, or with intent to resist or prevent the lawful apprewould have
hension or detainer of the party so offending, or any of his accombeen murder if death had
plices, for any offence for which he or they may respectively be ensued. liable by law to be apprehended or detained, every such offender
, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon: Provided always, that in case it shall appear on the trial of any person indicted for any of the offences above specified, that such acts of shooting, or of attempting to discharge loaded arms, or of stabbing, cutting, or wounding as aforesaid, were committed under such circumstances, that, if death had ensued therefrom, the same would not in law have amounted to the crime of murder, in every such case the person so indicted
shall be acquitted of felony." Administering
$ 13. “ If any person, with intent to procure the miscarriage poison, or using of any woman then being quick with child, unlawfully and mali
ciously shall administer (a) to her, or cause to be taken by her, any procure the miscarriage of poison or other noxious thing, or shall use any instrument or other a woman quick means whatever with the like intent, every such offender, and with child.
every person counselling, aiding, or abetting such offender, shall The like as to
be guilty of felony, and, being convicted thereof, shall suffer death
as a felon; and if any person, with intent to procure the miscarriage quick with child, of any woman not being, or not being proved to be, then quick with child, unlawfully and maliciously
shall administer (a) to her, or cause to be taken by her, any medicine or other thing, use any instrument or other means whatever with the like intent, every such offender, and every person counselling, aiding, or abet
, ting such offender, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years
any means to
a woman not
(a) See R. V. Cadman, post, p. 546.