CHAPTER THE TWENTIETH. OF FORESTALLING, REGRATING, AND INGROSSING, AND OF MONOPOLIES. EVERY practice or device by act, conspiracy, words, or news, to enhance the price of victuals or other merchandize, has been held to be unlawful; as being prejudicial to trade and commerce, and injurious to the public in general. (a) Practices of this kind came under the notion of forestalling; which anciently comprehended, in its signification, regrating and ingrossing, and all other offences of the like nature. (b) Spreading false rumours, buying things in the market before the accustomed hour, or buying and selling again the same thing in the same market, are offences of this kind. (c) Also if a person within the realm bought any merchandize in gross, and sold the same again in gross, it was considered an offence of this nature, on the ground that the price must be thereby enhanced, as each person through whose hands it passed would endeavour to make his profit of it. (d) So the bare ingrossing of a whole commodity, with an intent to sell it at an unreasonable price, was an offence at the common law; for if such practices were allowed, a rich man might ingross into his hands a whole commodity, and then sell it at what price he should think fit. (e) The offences of forestalling, regrating, and ingrossing were for a considerable period prohibited by statutes; but the beneficial tendency of such statutes was doubted; and at length by the 12 Geo. 3, c. 71, they were repealed, as being detrimental to the supply of the labouring and manufacturing poor of the kingdom. But forestalling, regrating, and ingrossing continued offences at common law until the 7 & 8 Vict. c. 24, s. 1, which enacts that the several offences of badgering, engrossing, forestalling, and regrating be utterly taken away and abolished, and that no information, indictment, suit, or prosecution, shall lie either at common law or by virtue of any statute, or be commenced or prosecuted against any person for or by reason of any of the said offences or supposed offences.'1 Sec. 4 Nothing in this Act contained shall be construed to apply to the offence of knowingly and fraudulently spreading, or conspiring to spread, any false rumour, with intent to enhance or decry the price of any goods or merchandize, or to the offence of preventing, or endeavouring to prevent, by force or threats, any goods, wares, or merchandize being brought to any fair or market, but that every such offence may be inquired of, tried, and punished as if this Act had not been made.' The attempt by false reports to enhance or abate the price of our native commodities is punishable by fine and ransom at common law. (f) And where certain persons came to Coteswold, and said, in deceit of the people, that there were such wars beyond the seas that wool could not pass or be carried beyond sea, whereby the price of wools was abated; and presentment thereof being made, the defendants, having appeared, were, upon their confession, put to fine and ransom. (g) And there can be no doubt that the offences excepted by sec. 4 of the 7 & 8 Vict. c. 24, are punishable like other common-law misdemeanors. (h) Monopolies are much the same offence in other branches of trade that ingrossing is in provisions: being a licence or privilege allowed by the King for the sole buying and selling, making, working, or using of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. (i) They are said to differ only in this, that monopoly is by patent from the King, ingrossing by the act of the subject, between party and party; and have been considered as both equally injurious to trades and the freedom of the subject, and therefore equally restrained by the common law. (j) By the common law, therefore, those who are guilty of this offence are subject to fine and imprisonment, the offence being malum in se, and contrary to the ancient and fundamental laws of the kingdom; and it is said that there are precedents of prosecutions of this kind in former days. (k) And all grants of this kind, relating to any known trade, are void by the common law. (1) But, notwithstanding their illegality, monopolies had been carried to an enormous height during the reign of Queen Elizabeth; the evil was, however, in a great measure remedied by the 21 Jac. 1, c. 3, which declares them to be contrary to law, and void (except as to patents not exceeding the grant of fourteen years to the authors of new inventions; and except also patents concerning printing, saltpetre, gunpowder, great ordnance, and shot); and monopolists are punished with the forfeiture of treble damages and double costs to those whom they attempt to disturb. (m) (f) 3 Inst. 196, referring to 23 Ed. 3, c. 6. 13 Rich. 2, c. 8, Inter leges Ethelstani, c. 12. (g) 43 Ass. pl. 38. 3 Inst. 196. (h) Ante, p. 475. (i) 4 Blac. Com. 158. 3 Inst. 181. (j) Skin. 169. (k) 3 Inst. 181. 2 Inst. 47, 61. Bac. Abr. tit. Monopoly (A), note (b). (7) 1 Hawk. P. C. c. 79, s. 1. (m) Sec. 4. And see further upon the subject of monopolies, 1 Hawk. P. Č. c. 79. Bac. Abr. tit. Monopoly. CHAPTER THE TWENTY-FIRST. OF MAINTENANCE AND CHAMPERTY, AND OF BUYING AND SELLING PRETENDED TITLES.1 MAINTENANCE seems to signify an unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hindrance of common right. This may be where a person assists another in his pretensions to lands, by taking or holding the possession of them for him by force or subtlety, or where a person stirs up quarrels and suits in relation to matters wherein he is in no way concerned; (a) or it may be where a person officiously intermeddles in a suit depending in a court of justice, and in no way belonging to him, by assisting either party with money, or otherwise, in the prosecution or defence of such suit. (b) Where there is no contract to have part of the thing in suit, the party so intermeddling is said to be guilty of maintenance generally; but if the party stipulate to have part of the thing in suit, his offence is called champerty. (c) As to maintenance, it is laid down that whoever assists another with money to carry on his cause, as by retaining one to be of counsel for him, or otherwise bearing him out in the whole or part of the expense of the suit, may properly be said to be guilty of an act of maintenance. (d) It has been said that no one can be guilty of maintenance in respect of any money given by him to another for the purposes of an intended suit, before any suit is actually commenced; but it should seem that this, if not strictly maintenance, must be equally criminal at common law. (e) And a person may be as much (a) Co. Lit. 368 b. Inst. 208, 212, 213. 1 Hawk. P. C. c. 83, ss. 1, 2. Bac. Abr. tit. Maintenance. This kind of maintenance is called in the books ruralis, in distinction to another carried on in courts of justice, and therefore called curialis. It is punishable at the King's suit by fine and imprisonment, whether the matter in dispute any way depended in plea or not; but is said not to be actionable. (b) 1 Hawk. P. C. c. 83, s. 3. Bac. Abr. tit. Maintenance. 4 Blac. Com. 134. This kind of maintenance is called curialis. See ante note (a). (c) Co. Lit. 368. 1 Hawk. P. C. c. 83, s. 3. The abuse of legal proceedings by oppressive combinations to carry them into effect is observed by Mr. Hume to have speedily appeared upon the establishment of the laws in the time of Edward I. He says, instead of their former associations for robbery and violence, men entered into formal combinations to support each other in law suits; and it was found requisite to check this iniquity by Act of Parliament.' 2 Hume, 320, referring to the statute of conspirators, - Edw. I. (d) 1 Hawk. P. C. c. 83, s. 4, and the numerous authorities cited in the margin. (e) Bac. Abr. tit. Maintenance (A). 1 AMERICAN NOTE. 1 The offences of maintenance, champerty, and the buying and selling of pretended titles appear not to be offences at common law in some of the American States. In some States there is no common law at all, and therefore of course there is no mainte In nance or champerty as such; but in some guilty of maintenance for supporting another after judgment, as for doing it while the plea is pending, because the party grieved may be thereby discouraged from bringing a writ of error or attaint. (ƒ) It has also been said, that he who by his friendship or interest saves a person that expense in his cause which he might otherwise be put to, or gives, or but endeavours to give, any other kind of assistance to a party in the management of his suit, is guilty of maintenance. (g) And it has been said also, that he who gives any public countenance to another in relation to such suit will come under the like notion; as if a person of great power and interest says publicly that he will spend a sum of money on one side, or that he will give a sum of money to labour the jury, whether in truth he spend anything or not; or where such a person comes to the bar with one of the parties, and stands by him while his cause is tried, whether he says anything or not; for such practices not only tend to discourage the other party from going on with his cause, but also to intimidate juries from doing their duty. (h) But it seems that a bare promise to maintain another is not in itself maintenance, unless it be either in respect of the power of the person who makes it, or of the public manner in which it is made. (i) A man is not guilty of an act of maintenance, by giving another friendly advice as to his proper remedy at law, or as to the counsellor or attorney likely to do his business most effectually. (j) Where a member of Parliament procured an informer to sue another member of Parliament for penalties, having sat and voted without being duly qualified, and gave him an indemnity against all costs and expenses, it was held that the member and the informer had no such common interest in the penalty sued for as to be a defence in an action for maintenance. (k) Hawk. P. C. c. 83, s. 12, where it is said, that if it plainly appear that the money was given merely with a design to assist in the prosecution or defence of an intended suit, which afterwards is actually brought, surely it cannot but be as great a misdemeanor in the nature of the thing and equally criminal at common law as if the money were given after the commencement of the suit; though perhaps it may not in strictness come under the notion of maintenance. (f) 1 Hawk. P. C. c. 83, s. 13. Bac. Abr. tit. Maintenance (A). Where a declaration alleged that the defendant unlawfully, maliciously, and without reasonable or prob. able cause, and without having any interest in the suit therein mentioned, instigated and stirred up a pauper to commence and prosecute an action against the plaintiff, by reason whereof the pauper did commence and prosecute such action, whereby the plaintiff was put to great trouble and vexation, and obliged to lay out a large sum in the defence of such action; the Court of Exchequer held that the declaration was good. Pechell v. Watson, 8 M. & W. 691. But where a declaration alleged that the defendant unlawfully and maliciously did procure, instigate, and stir up one Thomas to commence and prosecute an action against the plaintiff, wherein certain issues were joined A as to which the plaintiff was acquitted; the Court of Queen's Bench held that no cause of action appeared, the declaration not showing maintenance (as the action appeared not to have been commenced when the defendant interfered), and not alleging want of reasonable and probable cause for the action. Flight v. Leman, 4 Q. B. 883. declaration for maintenance need not charge the maintenance to have been committed against the form of the statute it being a wrongful act at common law, and the statutes relating to maintenance being only declaratory of the common law with additional penalties. Nor need the declaration allege that the defendant was not interested in the action maintained; for if he was that is matter to be pleaded by him. Pechell v. Watson, supra. (g) Bro. tit. Maintenance, 7, 14, 17, &c. 1 Hawk. P. C. c. 83, ss. 5, 6. But this would not be acted upon at the present day. See per Buller, J., in Master v. Miller, 4 T. R. 340. (h) 1 Hawk. P. C. c. 83, s. 7. Bac. Abr. tit. Maintenance (A). (i) 1 Hawk. P. C. c. 83, s. 8. But there are many acts, in the nature of maintenance, which become justifiable from the circumstances under which they are done. They may be justifiable-1, in respect of an interest in the thing in variance; 2, in respect of kindred or affinity; 3, in respect of other relations, as that of lord and tenant, master and servant; 4, in respect of charity; 5, in respect of the profession of the law. It seems clear that not only those who have an actual interest in the thing in variance, as those who have a reversion expectant on an estate-tail, or a lease for life or years, &c., but also those who have a bare contingency of an interest in the lands in question, which possibly may never come in esse, and even those who by the act of God have the immediate possibility of such an interest, as heirs apparent, or the husbands of such heirs, though it be in the power of others to bar them, may lawfully maintain another in an action concerning such lands: and if a plaintiff in an action of trespass alien the lands, the alienee may produce evidence to prove that the inheritance at the time of the action was in the plaintiff, because the title is now become his own. (1) Also he who is bound to warrant lands may lawfully maintain the tenant in the defence of his title, because he is bound to render other lands to the value of those that shall be evicted. And he who has an equitable interest in lands or goods, or even in a chose in action, as a cestui que trust, or a vendee of lands, &c., or an assignee of a bond for a good consideration, may lawfully maintain a suit concerning the thing in which he has such an equity. (m) And wherever any persons claim a common interest in the same thing, as in a way, churchyard, or common, &c., by the same title, they may maintain one another in a suit concerning such thing. (n) Where, on the trial of an action brought to recover the amount of an attorney's bill, in which there was a plea of maintenance, it appeared that Jesus College, Oxford, had given notice to set out tithes in kind to all the owners of old inclosures in the parish of Tredington, who had, as far as living memory went, paid certain sums of money in lieu of tithes for the old inclosures, and that, at a meeting of the owners of such old inclosures, it was agreed by them that they should defend any suit or suits, which should be instituted by Jesus College, to enforce the payment of tithes, and that the expenses of such defence should be paid by the owners in proportion to their interests, as ascertained by the poor rate; the owners considering that if Jesus College should succeed in one suit as to any part of the old inclosures, that would invalidate the payments as to all; and Jesus College afterwards filed seven bills in the Exchequer, and commissions were issued for the examination of witnesses in each suit, and depositions taken in all the suits; but in one suit a greater number of depositions than in any other, and which related to there having been no payment of any tithe for the old inclosures, and there being a distinction in this respect as far as living memory went, between the old and the new inclosures; and these depositions by consent had been (1) Bac. Abr. tit. Maintenance (B). 1 Hawk. P. C. c. 83, ss. 14, 15, &c. (m) Id. ibid., and see the judgment of Buller, J., in Master v. Miller, 4 T. R. 340, et seq. (n) 1 Hawk. P. C. c. 83, ss. 24, 25. Bac. Abr. tit. Maintenance (B). |