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And as to the objection that the quantity purchased could not constitute the offence of ingrossing unless it bore such a proportion to the consumption of the whole kingdom as would affect the general price, his Lordship said, that the objection was new to him: but that if the opinions of Lord Mansfield, Mr. Justice Dennison, and Mr. Justice Foster, were deserving of attention, there was as little in that objection as in the rest. That he well remembered an information moved for before them against certain persons, for conspiring to monopolize or raise the price of all the salt at Droitwich: and that they had no doubt of its constituting an offence, although it was not pretended that these persons had endeavoured to ingross all or any considerable part of the salt in the kingdom.
After referring to the conflict of political opinion upon the subject of these laws, Lord Kenyon proceeded thus :—“But without “ attending to disputed points, let us state fairly what this case “really is, and then see if it be possible to doubt whether the “ defendant has been guilty of any offence. Here is a person “ going into the market, who deals in a certain commodity. If “ he went there for the purpose of making his purchases in the “fair course of dealing, with a view of afterwards dispersing the “ commodity which he collected, in proportion to the wants and “ convenience of the public, whatever profit accrues to him from “ the transaction, no blame is imputable to him. On the contrary, “ if the whole of his conduct shews plainly that he did not make “his purchases in the market with this view, but that his traffic “there was carried on with a view to enhance the price of the. “commodity, to deprive the people of their ordinary subsistence; “ or else to compel them to purchase it at an exorbitant price, “ who can deny that this is an offence of the greatest magni“ tude.” (w)
The same defendant had been also tried upon an indictment Second case which, in substance, charged him chiefly with ingrossing a large aga
dington.-Inquantity of hops in Kent, by buying them from various persons grossing hops. by forehand bargains and otherwise, at a certain price, with intent to resell them at an unreasonable profit, or an exorbitant price. (x) were held not to be within the mean- (W) Rex v. Waddington, Hil. T. 41 ing of the statute 5 and 6 Edw. 6. Geo. 3. 1 East. R. 143. c. 14. any more than apples, cherries, (c) The indictment consisted of ten &c. (1 Hawk. P. C. c. 80. s. 20.) but counts : 1st. For ingrossing hops of the statute 9 Aon. c. 12. s. 24. must divers persons by name, with intent have altered the law with respect to to resell at an unreasonable profit, hops, as it prohibited common brewers, and thereby enhance the price ; 2d, uoder a penalty, from using any other For ingrossing hops then growing, by bitter than hops in brewing beer: and forehand bargains, with like intent; the ground on which salt was held to 3d, For buying large quantities of be a victual within the meaning of hops of divers persons mentioned, that statute was not only because it with intent to prevent their being is necessary of itself for the food and brought to market, and to resell them health of man, but also because it at an unreasonable profit, and thereby seasons and makes wholesome beef, enhance the price; 4th, For buying pork, &c. 3 Inst. 195. The monopo- all the growth of hops in several palizing of salt is clearly an offence at rishes by forehand bargains, with the common law. Vide Lord Kenyon's like intent; 5th, For buying hops of judgment in Rex v. Waddington, i divers persons named, with the same East, R. 157.
intent as in the first count; 6th, For
It appeared from the report, that the principal part of the evidence related to the forehand bargains made by the defendant with different planters for their growing crop of hops; a practice, however, which appeared to have prevailed for a considerable period of time in Kent, and without which some of the witnesses stated, that, in their judgment, the cultivation of this plant, the expense of which was exceedingly heavy, could not be generally carried on. There was also evidence of the defendant's having bought up very large quantities of the commodity to an unusual amount, and by making unusual advances of money; and that he had held out language of inducement to other persons dealing in the same article, to withhold their stock from the market, with a view to a rise in the price. (y)
On the part of the defendant, the long existence of the practice of making forehand bargains for hops was insisted upon as afford. ing some argument for their legality; and that at any rate it could not be considered as ingrossing to have made forehand bargains for 258 acres out of 30,000 acres in cultivation of the same article in the county of Kent alone. But Grose, J., in passing sentence upon the defendant, adverted to what had been said in the former prosecution, and stated that the particular offence of ingrossing still remained an offence at common law, and was calculated to create an artificial scarcity where none existed in reality, and to aggravate that calamity where it did exist. (2)
An indictment for ingrossing a great quantity of fish, geese, and ducks, without specifying the quantity of each, has been held to be bad. (a) And an indictment for ingrossing magnam quantitutem straminis et fæni was quashed for not mentioning how many loads of each. (6)
It is said, that by an ancient statute the offender was to be grievously amerced for the first offence; for the second to be condemned to the pillory; for the third to be imprisoned; and, for the fourth, to be compelled to abjure the vill. And there seems to be no doubt but that, at this day, all offenders of this kind are liable to a fine and imprisonment, answerable to the heinousness of their offence, upon an indictment at common law.(c)
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, workbuying all the growth of hops on cer- sufficient to go to the jury upon all tain lands in certain parishes, by fore- the counts; and the jury found a gehand bargains, with intent to resell at neral verdict against the defendant. an unreasonable price, and thereby to. (y) This last-mentioned evidence enhance the price; 7th, For endea- applied to the 7th count; the only one vouring to enhance the price of hops the proof of which was afterwards conby persuading hop owners not to sell, tested, but without effect, at the bar. &c. 8th, For ingrossing, by buying (2) Rex v. Waddington, Hil. T. 41 large quantities of persons unknown, Geo. 3. I East. Rep. 167. with intent to resell at an exorbitant (a) Rex v. Gilbert, i East. Rep. 583. profit ; 9th, Buying large quantities (1) Anon. Cro. Car. 381. And see with the like intent, 10th, For buying 2 Hawk. P. C. c. 25. s. 74. Rex v. hops then growing, with intent to re- Gibbs, 1 Str. 497. Rex v. Foster, I sell at an exorbitant price and lucre. Lord Raym. 475. The defendant was tried before Lord (c) i Hawk, P. C. c. 89. s. 5. Kenyon, who thought the evidence
ing, or using of any thing whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. (d) 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. (e) By the common law, therefore, those who are guilty of this offence are subject to fine and imprisonment, the offence being mulum 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. (f) And all grants of this kind, relating to any known trade, are void by the common law. (g)
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 statute 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 dis-, turb. (h)
It is worthy of observation, that, as our laws on the one hand The undue &carefully protect the people from the arts of those who would un
in batement of duly raise the price of the comforts and necessaries of life; so, on native comthe other, they protect the fair trader from impositions which may modities is puhave the effect of unduly lowering the price of the article in which
nishable. he deals. Thus, the abatement by undue means of the price of our native commodities is punishable by fine and ransom : (i) and a case is mentioned 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. (k)
ce of our
(d) 4 Bla. Com. 158. 3 Inst. 181. (e) Skin. 169.
if) 3 Inst. 181. 2 Inst. 47, 61. 4 Bac. Ab. 764. Monopoly (A) note (6).
(g) 1 Hawk. P. C. c. 79. s. ).
the subject of monopolies, 1 Hawk.
(i) 3 Inst. 196., referring to 23 Ed.3. c. 6. 13 Rich. 2. c. 8. Inter leges Ethelstani, c. 12.
(K) 3 Inst. 196.
OF MAINTENANCE AND CHAMPERTY, AND OF BUYING AND SELLING
Maintenance. I. 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 subtilty, 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. (6) 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) Instances of As to maintenance, it is laid down, that whoever assists another maintenance. 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
(a) Co. Lit. 368 b. 2 Inst. 208, 212, ings by oppressive combinalions to 213. i Hawk. P. C. c. 83. s. 1, 2. 4 carry them into effect is observed by Bac. Ab. 488. Maintenance. This kind Mr. Hume to have speedily appeared of maintenance is called in the books upon the establishment of the laws in ruralis, in distinction to another sort the time of Edward I. He says, “incarried on in courts of justice, and “stead of their former associations for therefore called curialis. It is punish- “robbery and violence, men entered able at the king's suit by fine and im- “into formal combinations to support prisonment, whether the matter in dis- “each other in lawsuits; and it was pute any way depended in plea or not; “found requisite to check this iniquity but is said not to be actionable. “by act of parliament.” 2 Hume 320,
(6) I Hawk. P. C. c. 83. S. 3. 4 Bac. referring to the statute of ConspiraAbr. 488. Maintenance. 4 Bla. Com. tors.-Edw. I. 134. This kind of maintenance is (d) I Hawk. P. C. c. 83. §. 4., and called curialis. See ante, note (a). the numerous authorities cited in the
(c) Co. Lit. 368. I Hawk. P. C. c. margin. 83. $. 3. The abuse of legal proceed
maintenance, must be equally criminal at common law. (e) And a person may be as much 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. (f)
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 any thing 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 any thing 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. (0) And it seems clear, that a man is in no danger of being 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. (k)
But there are many acts, in the nature of maintenance, which when justifibecome justifiable from the circumstances under which they are able. 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 respoct of in the thing in variance, as those who have a reversion expectant ar
the thing in
variance. (e) 4 Bac. Ab. 490. Maintenance, "curious, and not altogether useless, (A). i Hawk, P.C. c. 33, s. 12. where “ to see how the doctrine of mainit is said, that if it plainly appear that “tenance has from time to time been the money was given merely with a "received in Westminster Hall. At design to assist in the prosecution or " one time, not only he who laid out defence of an intended suit, which af- “ money to assist another in his cause, terwards is actually brought, surely it “ but he that by bis friendship or incannot but be as great a misdemeanor “terest saved him an expense that he in the nature of the thing and equally " would otherwise be pui to, was held criminal at common law as if the mo. “ guilty of maintenance. Nay, if he Dey were given after the commence- “ officiously gave evidence, it was ment of the suit; though perhaps it “ maintenance; so that he must have may not in strictness come under the “ had a subpæna, or suppressed the notion of maintenapce.
“ truth. That such doctrine, repug() i Hawk. P. C. c. 83. s. 13. 4 “nant to every honest feeling of the Bac. Ab. 490. Maintenance (A). • human heart, should be laid aside,
(g) Bro, tit. Maintenance, 7, 14, 17, “ must be expected.” &c. 1 Hawk. P. C. c. 83. s. 5, 6. But (h) 1 Hawk. P. C. c. 83, s. 7. 4 Bac. qu. how far this would be acted upon Ab. 489. Maintenance (A). at the present day; and see the judg. (i) i Hawk. P. C. c. 83. S. 8. ment of Buller, J. in Master v. Miller, (k) Ibid. s. 9. 4 Bac. Ab. 489. Main4 T. R. 340. where he says: “ It is tenance (A).