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interber act of God may never cominterest in the but also those
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. And a man's bail may take care to have his appearance recorded :
but, as some say, they cannot safely intermeddle further. (n) In respect of Whoever is of kin, or godfather to either of the parties, or kindred or
related by any kind of affinity still continuing, niay lawfully stand affinity.
by at the bar and counsel him, and pray another to be of counsel for him; but cannot lawfully lay out his money in the cause, unless he be either father, or son, or heir apparent, to the party, or hus
band of such an heiress. (0) In respect of Much of the law relating to the maintenance which a lord may of lord and
give to his tenant would hardly be applicable at the present time. haster It seems to have been the better opinion that the lord might jus · and servant. tify laying out his own money in defence of his tenant's title,
where the lands were originally derived from the lord, but that he could not maintain the tenant in respect of lands not holden of himself. (p)
With respect to the maintenance which a master may give to his servant, it has been held that he may go along with him, or his domestic chaplain, to retain counsel; also he may pray one to be of counsel for him, and may go with him, and stand with him, and aid him at the trial, but ought not to speak in court in favour of his cause : also it is said, that if the servant be arrested, the master may assist him with money to keep him from prison, that he may have the benefit of his service; but he cannot safely lay out money for the servant in a real action, unless he have some of his wages in his hands; but those, with the servant's consent, he may safely disburse. (9) And a servant cannot lawfully lay out any of his own money to assist the master in his suit. (r)
(1) 4 Bac. Abr. 490, Maintenance . (0) 4 Bac. Abr. 491. 1 Hawk. P. C. (B). I Hawk. P. C. c. 83. s. 14, 15, &c. c. 83. s. 26.
(m) Id. Ibid. and see the judgment (p) 1 Hawk. P.C. c. 83. s. 29.
P. C. c. 83. s. 31, 32, 33.
Any one may lawfully give money to a poor man to enable him in respect of to carry on his suit: and any one may safely go with a foreigner, charity. who cannot speak English, to a counsellor and inform him of his case. (s)
A counsellor, having received his fee, may lawfully set forth his In respect of client's cause to the best advantage; but can no more justify the
of the law. giving him money to maintain his suit, or threatening a juror, than any other person. An attorney also, when specially retained, may lawfully prosecute or defend an action, and lay out his 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 expense, with a promise never to expect repayment; and it is said to be questionable whether solicitors, who are no attornies, can, in any case, lawfully lay out their own money in another's cause. ()
But no counsellor or attorney can justify using any deceitful practice in maintenance of a client's cause; and they will be liable to be punished for misdemeanors in this respect by the common law, and also by the statute Westm. 1. c. 29. (u) In the construction of this statute it hath been hulden that all fraud and falsehood, tending to impose upon or abuse the justice of the king's courts, are within the purview of it; as if an attorney sue out an habere facius seisinam, falsely reciting a recovery where there was none, and by colour thereof put the supposed tenant in the action out of his freehold. Also it is an offence within the statute to bring a præcipe against a poor man having nothing in the land, on purpose to oust the true tenant, or to procure an attorney to appear for a man, and confess a judgment without any warrant; or to plead a false plea, known to be utterly groundless, and invented merely to delay justice and to abuse the court. (2) In most of these cases the court would probably grant an attachment against the offender on motion. (y)
II. Champerty is a species of maintenance, being a bargain Champerty. with a plaintiff or defendant campum partire, to divide the land or other matter sued for between them, if they prevail at law; whereupon the champertor is to carry on the party's suit at his own expense. (z) Little is to be met with in modern books upon this subject: but the statutes, and resolutions upon their construction, may be shortly noticed.
The statute Westminster 1. (3 Edw. 1.) c. 25. enacts, that “ no Westm.1.c.25. “ officers of the king, by themselves, nor by others, shall main- No officer, &c.
shall maintain “ tain pleas, suits, or matters, hanging in the king's courts, for pleas "lands, tenements, or other things, for to have part or profit lands, &c. to “ thereof, by covenant made between them; and he that doth shall have part “ be punished at the king's pleasure." By the courts mentioned the
the off cases the lay Justin
(3) Bro. Maint. 14. 4 Bac. Abr. 491. offender shall be imprisoned for a Maintenance (B) 4. I Hawk. P.C. c. 83. year and a day, and shall not plead $. 36, 37.
again if he be a pleader. (1) 2 Inst. 564. 4 Bac. Abr. 491, (+2) 2 Inst. 215. Dy. 362. 1 Hawk. 492. Maintenance (B) 5. I Hawk. P.C. P.C. c. 83. s. 33, et sequ. c. 83, s. 28, 29, 30.
(y) 4 Bac. Abr. 492, Maintenance in (u) 2 lost. 215. Bac. Abr. and Hawk. the margin. id. ibid.. The statute enacts that the (-) 4 Blac. Com. 135.
in this statute it has been held that courts of record only are intended; and it has also been held that under the word covenant all kinds of promises and contracts of this kind are included ; that maintenance in personal actions, to have part of the debt or damages, is as much within the statute as maintenance in real actions for a part of the land ; and that though a grant of rent out of other lands is not within the statute, yet the statute applies to a grant of rent out of the lands in question; but that a grant of part of a thing in suit, made in consideration of a precedent debt, is not within its meaning. (a) The maintenance of a tenant or defendant is as much within the meaning of the statute as the maintenance of a demandant or plaintiff. And it has been holden not to be material whether he who brings a writ of champerty did in truth suffer any damage by it, or whether the plca wherein
it is alleged be determined or not. (6) Westm.2. c.49. The statute Westminster 2. (13 Edw. l.) c. 49. enacts, that
“ the chancellor, treasurer, justices, nor any of the king's council, cers not to re-as ceive any
“ no clerk of the chancery, nor of the exchequer, nor of any church, land, “justice or other officer, nor any of the king's house, clerk ne lay,
So long as “ shall not receive any church, nor advowson of a church, land, the thing is in plea.
“ nor tenement, in fee, by gift, nor by purchase, nor to farm, nor “ by champerty, nor otherwise, so long as the thing is in plea “ before us, or before any of our officers; nor shall take no reward 6 thereof. And he that doth contrary to this act, either himself " or by another, or make any bargain, shall be punished at the “ king's pleasure, as well he that purchaseth as he that doth seil.” This statute extends only to the officers therein named, and not to any other persons. (c) But it so strictly restrains all such officers from purchasing any land, pending a plea, that they cannot be excused by a consideration of kindred or affinity, and they are within the meaning of the statute by barely making such a purchase, whether they maintain the party in his suit or not; whereas such a purchase for good consideration made by any other person, of any terre-tenant, is no offence, unless it appear
that he did it to maintain the party. (d) Extended by
The statute 28 Edw. I. c. 11. reciting that the king had there28 Edw, 1. tofore ordained by statute that none of his ministers should take c. 11.
no plea for maintenance, by which statute other officers were not
(a) See the authorities collected in (6) Id. ibid.
(d) I Hawk. P.C. c. 84. s. 12.
“ friends." Upon this statute it seems to be agreed that champerty in any action at law is within it; and a purchase of land, pending a suit in equity concerning it, has also been holden to be within the statute ; also a lease for life or years, or a voluntary gift of land, pending a plea, is as much within the statute as a purchase for money. But neither a conveyance executed, pending a plea, in pursuance of a precedent bargain, nor any surrender by a lessee to his lessor, nor any conveyance or promise thereof made by a father to his son, or by any ancestor to his heir apparent, nor a gift of land in suit, after the end of it, to a counsellor, for his fee or wages, without any kind of precedent bargain relating to such gift, are within the meaning of the statute. (e)
III. Another species of maintenance appears to be the offence of buying or of buying or selling a pretended title ; of which it is said in the selling a pre
tended title. books that it seems to be an high offence at common law, as plainly tending to oppression, for a man to buy or sell at an under rate a doubtful title to lands known to be disputed, to the intent that the buyer may carry on the suit, which the seller does not think it worth his while to do. And it seems not to be material whether the title be good or bad ; or whether the seller were in possession or not, unless the possession were lawful and uncontested. (f) Offences of this kind are also restrained by several statutes. The 1 Rich. 2. c. 9. enacts, that no gift or feoffment of lands or goods in debate under legal proceedings, as mentioned in the statute, shall be made ; and that, if made, they shall be holden for none and of no value. (g) And by the 13 Edw. 1. c. 49. no person of the king's house shall buy any title whilst the thing is in dispute, on pain of both the buyer and seller being punished at the king's pleasure. There is also a provision of the statute 32 Hen. 8. c. 9. that no one shall buy or sell or obtain any pretended right or title to land unless the seller, his ancestors, or they by whom he claims, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents or profits for one whole year before ; on pain that both seller and buyer shall each forfeit the value of such land, the one half to the king, and the other to him who will sue. (h)
The offences of champerty and buying of titles, laid or alleged in Place of trial any declaration or information, may be laid in any county, at the for
and buying of pleasure of the informer. (0)
titles. By the common law all unlawful maintainers are not only liable Punishe to render damages in an action at the suit of the party grieved, but of mainte
nance by com
mon law. (e) i Bac. Abr. Champerty, p. 576. (h) But the statute provides that any 1 Hawk. P.C.c. 84. s. 14. et sequ. But person, being in lawful possession by with respect to the counsellor it is said taking the rents and profits, may buy that it seems dangerous for him to or get the pretended right or title of mcddle with any such gift, since it any other person to the same. And it cannot but carry with it a strong pre- also provides, that no person shall be sumption of champerty. 2 Inst. 564. charged with these penalties unless
of 4 Bac. Abr. Maintenance, (E) p. sued within a year after the offence. 494. Hawk. P.C. c. 86. s. 1. Moore For the construction of this statute, 751. Hob. 115. Plowd. 80.
see 1 Hawk. P.C. c. 86. s. 7. et sequ. (3) But as between the feoffor and (i) 31 Eliz. c. 5. s. 4. 1 Hawk. P.C. feoffee, feoffments of this kind are ef- c. 84. s. 20. and c. 86. s. 18. fectual. Co. Lit. 369.
may also be indicted and fined, and imprisoned, &c.; and it seems that a court of record may commit a man for an act of maintenance in the face of the Court. (k)
Some pains and penalties are also attached to this offence by statute. The 1 Rich. 2. c. 4. enacts, that no person whatsoever shall take or sustain any quarrel by maintenance, in the country or elsewhere, on grievous pain; that is to say, the king's counsellors and great officers, on a pain that shall be ordained by the king himself, by the advice of the lords of this realm ; and other officers of the king, on pain to lose their offices and to be imprisoned and ransomed &c.; and all other persons, on pain of imprisonment and ransom. And by the 32 Hen. 8. c. 9. maintenance is subjected to a forfeiture of ten pounds: one moiety to the king, and the other moiety to the informer. (1)
(k) 2 Roll. Abr. 114. 2 Inst. 208. (1) For the construction of these staHet). 79. i Hawk. P. C. c. 83. s. 38. tutes, see I Hawk. P. C. c. 83. s. 40, et * Bac. Abr. Maintenance, (C) p. 492. sequ.