or knowledge, and that the said publication did not arise from want of due care or caution on his part." *By s. 8, "in the case of any indictment or information by a private [ *666 ] prosecutor for the publication of any defamatory libel, if judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the said defendant by reason of such indictment or information; and that upon a special plea of justification to such indictment or information, if the issue be found for the prosecutor, he shall be entitled to recover from the defendant the costs sustained by the prosecutor by reason of such plea, such costs so to be recovered by the defendant or prosecutor respectively to be taxed by the proper officer of the court before which the said indictment or information is tried." Statute 32 Geo. 3, c. 60.] By Mr. Fox's act (the 32 Geo. 3, c. 60,) reciting that doubts had arisen whether on the trial of an indictment or information for the making or publishing of a libel, where an issue or issues are joined between the king and the defendant or defendants on the plea of not guilty pleaded, it be competent to the jury impannelled to try the same, to give their verdict upon the whole matter in issue, it is (by sec. 1,) declared and enacted, that on every such trial the jury sworn to try the issue, may give a general verdict of not guilty upon the whole matter put in issue upon such indictment or information, and shall not be required or directed by the court or judge, before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication, by such defendant or defendants, of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information. By sec. 2, it is provided, that on every such trial the court or judge, before whom such indictment or information shall be tried, shall according to their or his discretion, give their or his opinion or discretion to the jury on the matter in issue between the king and the defendant or defendants, in like manner as in other criminal cases. By sec. 3, it is provided that nothing in the act contained shall extend, or be construed to extend, to prevent the jury from finding a special verdict, in their discretion, as in other criminal cases. And by sec. 4, in case the jury shall find the defendant or defendants guilty, it shall and may be lawful for the defendant or defendants to move an arrest of judgment on such ground and in such manner as by law he or they might have done before the passing of the act. (1) (1) See People v. Croswell, 3 Johns. cases, 337. MAINTENANCE, CHAMPERTY, AND EMBRACERY. Maintenance—nature of the offence.] Maintenance signifies an unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hindrance of common right.(1) Hawk. P. C. b. 1, c. 83, s. 1. It may be either with regard to matters in suit, or to matters not in legal controversy. Id. s. 2. It is an offence punishable at common law with fine and imprisonment, and is forbidden by various statutes. 1 Ed. 3, st. 2, c. 14; 20 Ed. 3, c. 4; 1 R. 2, c. 4; 32 Hen. 8, c. 9. s. 3. These acts, however, are only declaratory of the common law, with additional penalties. Pechell v. Watson, 8 M. & W. 691. According to the old authorities, whoever assists another with money to carry on his cause, or retains one to be of counsel for him, or otherwise bears him out in the whole or any part of his suit, or by his friendship or interest saves him that expense which he might be otherwise put to, or gives evidence without being called upon to do so, or speaks in another's cause, or retains an attorney for him, or being of great power and interest says publicly that he will spend money to labour the jury, or stand by the party while his cause is tried, this is maintenance. Hawk. P. C. b. 1, c. 83, ss. 5, 6, 7. It may be doubted, however, whether, at the present day, some of these acts would be held to amount to an indictable offence, unless they were plainly accompanied with a corrupt motive. A bare promise to maintain another is not in itself maintenance, unless it is so in respect of the public manner in which, or the power of the person by whom, it be made. Hawk, P. C. b. 1, c. 83, s. 8. So the mere giving of friendly advice, as what action it will be proper to bring to recover a certain debt, will not amount to maintenance. Ibid. s. 11. Maintenance justifiable in respect of interest.] Those who have a certain interest, or even bare contingent interest, in the matter in variance, may maintain [ *668] another in an action concerning such matter; *as in the case of landlord and tenant, trustees and cestui que trust. Hawk. P. C. b. 1, c. 83, ss. 19, 20, 21. So where A. at the request of B. defended an action brought for the recovery of a sum of money, in which B. claimed an interest, upon B. undertaking to indemnify him from the consequences of such action, this was held not to be maintenance. Williamson v. Henley, 6 Bing. 299. So wherever persons claim common interest in the same thing, as in a way, common, &c., by the same title, they may maintain one another in a suit relating to the same. Hawk. P. C. b. 1, c. 83, s. 24. (1) See Small v. Molt, 22 Wend. 403. Eng. Com. Law Reps. xix. 87. Maintenance-justifiable-master and servant.] A master may go with his servant to retain counsel, or to the trial and stand by him, but ought not to speak for him; or if arrested may assist him with money. Hawk. P. C. b. 1, c. 83, ss. 31, 32. So a servant may go to counsel on behalf of his master, to show his evidence, but cannot lawfully lay out his own money to assist his master. Ibid. s. 34. Maintenance justifiable-affinity.] Whoever is in any way of kin or affinity to either of the parties, may stand by him at the bar, and counsel or assist him; but unless he be either father or son, or heir apparent, or the husband of such an heiress, he cannot justify laying out money in his cause. Hawk. P. C. b. 1, c. 83, s. 26. Maintenance justifiable-poverty.] Any one may lawfully give money to a poor man, to enable him to carry on his suit. (1) Hawk. P. C. b. 1, c. 83, s. 36. Maintenance-justifiable-counsel and attorneys.] Another exception to the general rule with regard to maintenance is the case of counsel and attorneys. But no counsel or attorney can justify the using of any deceitful practice in the maintenance of a client's cause, and they are liable to be severely punished for misdemeanors of this kind. Hawk. P. C. b. 1, c. 83, s. 31. And by stat. West. 1, c. 29, if any serjeant, pleader, or other, do any manner of deceit or collusion in King's court, or consent to it, in deceit of the court, or to beguile the court or the party, he shall be imprisoned for a year and a day. Procuring an attorney to appear for a man, and to confess judgment without a warrant, has been held within this statute. Hawk. P. C. b. 1, c. 83, s. 36. So bringing a præcipe against a poor man, knowing he has nothing in the land, on purpose to get the possession from the true tenant. Id. s. 35. Champerty.] Champerty is a species of maintenance, accompanied by a bargain to divide the matter sued for between the parties, whereupon the champertor is to carry on the suit at his own expense. 4 Bl. Com. 135; 1 Russ. by Grea. 179. Champerty may be in personal as well as in real actions. Hawk. P. C. b. 1, c. 84, s. 5; and to maintain a defendant may be champerty. Ibid. s. 8. By 31 Eliz. c. 5, the offence of champerty may be laid in any county, at the pleasure of the informer. Various cases have occurred in modern times, in which the doctrine of champerty has come in question. Where a bill was filed to set aside an agreement made by a seaman, for the sale of his chance of *prize money, Sir William Grant, [ *669 ] M. R. expressed an opinion that the agreement was void from the beginning, as amounting to champerty, viz., the unlawful maintenance of a suit, in consideration of a bargain for a part of the thing, or some profit out of it. Stevens v. Bagwell, 15 Ves. 139. So in a late case it was held, that an agreement to communicate such information as should enable a party to recover a sum of money by action, and to exert influence for procuring evidence to substantiate the claim, upon condition of receiving a portion of the sum recovered, was illegal. Stanley v. Jones, 7 Bing. 369; 5 Moore & P. 193; see Potts v. Sparrow, 6 C. & P. 749. Embracery.] Embracery, likewise, is another species of maintenance. Any (1) Perine v. Dunn, 3 Johns. Ch. Rep. 508. b Eng. Com. Law Reps. xx. 165. State v. Chitty, 1 Bailey, 401. • Id. xxxv. 631. attempt to corrupt, or influence, or instruct a jury, or incline them to be more favourable to one side than the other, by money, promises, letters, threats, or persuasions, except only by the strength of the evidence, and the arguments of the counsel in open court, at the trial of the cause, is an act of embracery; whether the jurors gave any verdict or not, and whether the verdict given be true or false. (1) Hawk. P. C. b. 1, c. 85, s. 1. The giving money to a juror after the verdict, without any preceding contract, is an offence savouring of embracery; but it is otherwise of the payment of a juror's travelling expenses. Id. s. 3. Embracery is punishable by fine and imprisonment. Id. s. 7. Analogous to the offence of embracery is that of persuading, or endeavouring to persuade, a witness from attending to give evidence, an offence punishable with fine and imprisonment. It is not material that the attempt has been unsuccessful. Hawk. P. C. b. 1, c. 21, s. 15; Lawley's case, 2 Str. 904; 1 Russ. by Grea. 182. With regard to breaking down sea-banks, locks, and works on rivers, canals, fish With regard to turnpike gates, toll-houses, &c. 674 Proof of cutting, &c., trees above the value of 11. in parks, &c. With regard to trees and vegetable productions Proof of destroying trees, &c., wheresoever growing, above the value of 18. 674 674 675 675 Proof of cutting hop-binds 676 With regard to ships 676 Proof of destroying ships with intent, &c. 676 Proof of damaging ships, otherwise than by fire, with intent, &c. 676 With regard to machinery, and goods in course of manufacture 678 Proof of destroying threshing machines, and machines used in manufactures. With regard to works of art 679 680 The law relating to malicious injuries to property, was formerly comprised in a great variety of statutes, which are now repealed by the 7 & 8 Geo. 4, c. 27, and new provisions substituted in their place, by the 7 and 8 Geo. 4, c. 30. In the latter act, certain general clauses are contained, which being applicable to the greater part of the offences after-mentioned, may be most conveniently inserted in this place.(2) (1) Gibbs v. Dewey, 5 Cowen, 503. (2) An indictment for malicious mischief will only lie for the malicious destruction of personal property. State v. Holmes, 5 Iredell's N. C. Law Rep. 364. Proof of malice against owner.] By the 7 and 8 Geo. 4, c. 30, s. 25, (the 9 Geo. 4, c. 56, s. 32, I.) it is enacted, "that every punishment and forfeiture by this act imposed on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property, in respect of which it shall be committed, or otherwise." Apprehension of offenders.] By the 7 & 8 Geo. 4, c. 30, s. 28, for the more effectual apprehension of all offenders against this act, it is enacted, "that any person found committing any offence against this act, whether the same be punishable upon indictment or upon summary conviction, may be immediately apprehended, without a warrant, by any peace officer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighbouring justice of the peace, to be dealt with according to law." Accessaries.] By the 26th section, "in the case of every felony punishable under this act, every principal in the second degree, and every accessary before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this act punishable; and every accessary after the fact to any felony punishable under this act shall, on conviction, be liable to be imprisoned for any term not exceeding two years; and every person who shall aid, abet, counsel or procure the commission of any misdemeanor punishable under this act, shall be liable to be indicted and punished as a principal offender." of Punishment—hard labour.] By s. 27, "where any person shall be convicted any indictable offence punishable under this act for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the court in its discretion shall seem meet." But now by the 7 Wm. 4, and 1 Vict. c. 90, s. 5, solitary confinement shall not exceed one month at a time, and not more than three months in any one year; see ante, p. 389. WITH REGARD TO MINES. Proof of drowning a mine, or filling up a shaft with intent to destroy the mine.] The 39 & 40 Geo. 3, c. 77, relating to this subject, being repealed, the offence is now provided against by the *7 & 8 Geo. 4, c. 30, the sixth section of [ *672] which enacts," that if any person shall unlawfully and maliciously cause any water |