But here

6. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; (18) and it is generally the same offence in the stranger so rescuing as it would have been in a gaoler to have voluntarily permitted an escape. (19) A rescue, therefore, of one apprehended for felony, is felony; for treason, treason; and for a misdemeanor, a misdemeanor also. (20) likewise, as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished, and for the same reason; because, perhaps, in fact it may turn out that there has been no offence com'mitted. (k) (21) By statute 11 Geo. II. c. 26, and 24 Geo. II. c. 40, if five or more persons assemble to rescue any retailers of spirituous liquors, or to assault the informers against them, it is felony, and subject to transportation for seven years. By the statute 16 Geo. II. c. 31, to convey to any prisoner in custody for treason or felony any arms, instruments of escape or disguise, without the knowledge of the gaoler, though no escape be attempted, or any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and subjects the offender to transportation for seven years; or if the prisoner be in custody for petit larceny or other inferior offence, or charged with a debt of 100l., it is then a misdemeanor, punishable with fine and imprisonment. (22) And, by several special statutes, (7) to rescue, or attempt to rescue, any person committed for the offences enumerated in those acts, is felony without benefit of clergy; and to rescue, or attempt to rescue, the body of a felon executed for murder, is single felony, and subject to transportation for seven years. Nay, even if any person be charged with any of

(k) 1 Hal. P. C. 607. Fost. 344.

(1) 6 Geo. I. c. 23, (Transportation). 9 Geo. I. c. 22. (Black Act.) 8 Geo. II. c. 20. (Destroying turnpikes,

etc.) 19 Geo. II. c. 34. (Smuggling. See the 52 Geo. III. c. 143, s. 11.) 25 Geo. II. c. 37. (Murder.) 27 Geo. II. c. 15. (Black Act.)

is not necessary. The statute extends to a prison in law as well as to a prison in fact. 2 Inst. 589. "Prison-breach or rescue is a common-law felony, if the prisoner breaking prison, or rescued, is a convicted felon; and it is punishable at common law by imprisonment, and, under 19 Geo. III. c. 74, 8 4, by three times whipping. Throwing down loose bricks at the top of a prison-wall, placed there to impede escape and give alarm, is prisonbreach, though they were thrown down by accident." Rex v. Haswell, R. & R. C. C. 458.-CHITTY.

(18) Bishop, Cr. L. vol. 2, % 1065, p. 621.

(19) Barb. Cr. L. 1, *37, p. 45. "To rescue a prisoner, or effect his escape, is to become accessary to his guilt.' State v. Howard, 6 Conn. *476 (1827).

(20) Bishop, Cr. L. 2, 1090, p. 630.

(21) By 1 & 2 Geo. IV. c. 98, (entitled an "Act to amend the Law of Rescue,") s. 1, rescuing persons charged with felony is punishable with seven years' transportation, or imprisonment for not less than one year and not more than three years. And, by s. 1, assaulting any lawful officer, to prevent the apprehension or detainer of persons charged with felony, is punishable with two years' imprisonment, in addition to other pains and penalties incurred. Vide [See] also 5 Geo. IV. c. 84, 22. This section is repealed by 9 Geo. IV. c. 31, which, by section 25, provides a punishment for these offences. Vide post [Vide after], 217.

By 9 Geo. IV. c. 4, s. 13, (entitled the Mutiny Act,) persons under sentence of death by court-martial, having obtained a conditional pardon, escaping out of custody, and all parties aiding such escape, are punishable as felons. See Rex v. Stanley, R. & R. C. C. 432.-CHITTY.

(22) On an indictment under this act, the offence of delivering instruments of escape to a prisoner has been held to be complete though the prisoner had been pardoned of the offence of which he was convicted, on condition of transportation; and a party may be convicted though there is no evidence that he knew of what offence the prisoner had been convicted. Rex v. Shaw, R. & R. C. C. 526. This act applies only to cases of attempt, (Tilley's case, 2 Leach, 662;) and a case where the commitment is on suspicion only is not within it. Greenif's case, I Leach, 363. This act appears virtually to be repealed by 4 Geo. IV. c. 64, s. 43, which makes delivering instruments of escape to any prisoner, whether he actually escape or not, a felony punishable by fourteen years' transportation.-CHITTY.

the offences against the black-act, 9 Geo. I. c. 22, and being required, by order of the privy council, to surrender himself, neglects so to do for forty days, both he and all that knowingly conceal, aid, abet, or succor him, are felons without benefit of clergy.(23)

[132

*7. Another capital offence against public justice is the returning from transportation, or being seen at large in Great Britain before the expiration of the term for which the offender was ordered to be transported, or had agreed to transport himself. This is made felony without benefit of clergy in all cases, by statutes 4 Geo. I. c. 11, 6 Geo. I. c. 23, 16 Geo. II. c. 15, and 8 Geo. III. c. 15, as is also the assisting them to escape from such as are conveying them to the port of transportation. (24)

8. An eighth is that of taking a reward under pretence of helping the owner to his stolen goods. (25) This was a contrivance carried to a great length of villainy in the beginning of the reign of George the First; the confederates of the felons thus disposing of stolen goods, at a cheap rate, to the owners themselves, and thereby stifling all further inquiry. The famous Jonathan Wild had under him a well-disciplined corps of thieves, who brought in all their spoils to him, and he kept a sort of public office for restoring them to the owners at half-price. (26) To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted, by statute 4 Geo. I. c. 11, that whoever shall take a reward under the pretence of helping any one to stolen goods shall suffer as the felon who stole them, unless he causes such principal felon to be apprehended and brought to trial, and also gives evidence against them. Wild, still continuing in his old practice, was upon this statute at last convicted and executed. (m) (27)

(m) See stat. 6 Geo. I. c. 23, s. 9.

(23) The law on this subject is now much altered by the acts of 1 & 2 Geo. IV. c. 88, 4 Geo. IV. c. 54, 1, 5 Geo. IV. c. 84, and 14 & 15 Vict. c. 100, ? 29.

(24) These provisions are virtually repealed by the 5 Geo. IV. c. 84, which revives and consolidates into one act the laws relative to the transportation of offenders. By the 22d section it is enacted that if any offender, sentenced or ordered to be transported or banished, or having agreed to transport or banish himself, shall be afterwards found at large, without lawful excuse, before the expiration of the term of transportation or banishment, he shall suffer death without benefit of clergy. By sect. 84, the act is not to extend to persons banished, under the 60 Geo. III. and I Geo. IV. c. 8, for blasphemous and seditious libels. If the prisoner can show such circumstances of poverty or sickness which amount to an absolute impossibility to transport himself or leave the kingdom, he will not be within the act. I Leach, 396. By the 22d sect. of 5 Geo. IV. c. 84, a reward of 20/. is given for prosecuting an offender against the act to conviction.-CHITTY.

But these statutes are repealed by stat. 4 & 5 W. IV. c. 67, by which this offence is punishable with transportation for life, and previous imprisonment for any term not exceeding four years; and now penal servitude may be substituted.—STEWART.

(25) Where a stranger enters into an arrangement with a person whom he knows has stolen goods, and invites an interview with the owner, for the purpose of securing the return of the goods, under color of an agency, but in reality to make a profit out of the theft, he is within the statute against receiving stolen goods. Per Cowan, J. The People v. Wiley, 3 Hill's Rep. (N. Y.) 194, 205.

Bank notes are not " goods and chattels." A person receiving them cannot be indicted under the statute making it a misdemeanor to receive stolen "goods and chattels." The State v. Calvin, 2 N. J. 207, 208 (Z.). Neff v. Clute, 12 Barbour's (N. Y.) Rep. 466, 469. (26) The prisoner was first indicted on the 10 & 11 Wm. III. c. 23, for privately stealing a box of lace in a shop, and acquitted, upon its appearing from the testimony of one Kelly, who had actually stolen the box, and who was admitted as a witness for the crown, that the prisoner was not in the shop at the time, but only waited at the corner of the street to receive the goods; but immediately upon his acquittal he was again tried and convicted, on the 4 Geo. I. c. II, s. 4, for receiving ten guineas from the owner of the shop as a reward for helping her to the box of lace so stolen by Kelly; and Kelly was again examined as a witness on the part of the crown on this indictment. (2) Russell on Crimes, 2, *575.

(27) In Rex v. Ledbitter, R. & R. C. C. 76, a police officer was indicted, under 4 Geo.

9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemeanor and affront to public justice. We have seen in a former chapter(n) that this offence, which is only a misdemeanor at common law, by the statute 3 & 4 W. and M. c. 9, and 5 Anne, c. 31, makes the offender accessary to the theft and felony. But because the accessary cannot in general be tried, unless with the principal or after the principal is convicted, the receivers by that means frequently eluded justice. To remedy which, it is enacted, by statute 1 Anne, c. 9, and 5 Anne, c. 31, that such receivers may still be prosecuted for a misdemeanor, and punished by fine and *133] imprisonment, *though the principal felon be not before taken, so as to be prosecuted and convicted. (28) And, in case of receiving stolen lead, iron, and certain other metals, such offence is, by statute 29 Geo. II. c. 30, punishable by transportation for fourteen years. (o) So that now the prosecutor has two methods in his choice: either to punish the receivers for the misdemeanor immediately, before the thief is taken, (p) or to wait till the felon is convicted, and then punish them as accessaries to the felony, But it is provided, by the same statutes, that he shall only make use of one, and not both, of these methods of punishment. By the same statute, also, 29 Geo. II. c. 30, persons having lead, iron, and other metals in their custody, and not giving a satisfactory account how they came by the same, are guilty of a misdemeanor, and punishable by fine or imprisonment. And, by statute 10 Geo. III. c. 48, all knowing receivers of stolen plate or jewels, taken by robbery on the highway, or when a burglary accompanies the stealing, may be tried as well before as after the conviction of the principal, and whether he be in or out of custody, and, if convicted, shall be adjudged guilty of felony, and transported for fourteen years. (29)

10. Of a nature somewhat similar to the two last is the offence of theft bote, which is where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prose*134] cute. (30) *This is frequently called compounding of felony, and formerly was held to make a man an accessary; but it is now pun

(n) See page 38.

(o) See also stat. 2 Geo. III. c. 28, s. 12, for the punishment of receivers of goods stolen by bumboats,

etc., in the Thames.
(p) Foster, 373.

I. c. 11, 4, for taking money under the pretence of helping a person to goods stolen from him, and convicted of felony, though the officer had no knowledge of the felon, and though he possessed no power to apprehend the felon, and though the property was never restored and the officer had no power to restore it.

By statute 24 & 25 Vict. c. 96, sec. 101, it is enacted: "That whosoever shall corruptly take any money or reward directly or indirectly upon pretence or upon account of helping any person to any chattel, money, valuable security whatsoever" which has been stolen, embezzled, etc., shall be guilty of felony, unless due diligence has been used in bringing the offender to trial for the same; and by sec. 102: Whosoever shall publicly advertise a reward for the return of any property whatsoever which shall have been stolen or lost, and shall in such advertisement use any words purporting that no questions will be asked or that a reward will be given or paid for any property which shall have been stolen or lost without seizing or making any inquiry after the person producing such property, or shall promise or offer in any public advertisement to return to any pawnbroker or other person who may have bought or advanced money by way of loan upon any property stolen or lost, the money so paid or advanced or any other sum of money or reward for the return of such property, or shall print or publish any such advertisement, shall forfeit the sum of fifty pounds for every such offence to any person who shall sue for the same by action of debt, to be recovered with full costs of suit." People v. Wiley, 3 Hill (N. Y.) 194, 205 (1842).

(28) State v. Roberts, Charlton's Reports (Ga.) 26 (1805).

(29) See stat. 24 & 25 Vict. c. 96, which punishes such offences with penal servitude or imprisonment, and if the criminal be male, with or without whipping. (30) Bishop, Cr. L. 1, ¿ 710, p. 429. Barb. Cr. L. vol. 1, *216.

ished only with fine and imprisonment. (9) (31) This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. And the Salic law, "latroni eum similem habuit, qui furtum celare vellet, et occulte sine judice compositionem ejus admittere." (r) (32) By statute 25 Geo. II. c. 36, even to advertise a reward for the return of things stolen, with no questions asked, or words to the same purport, subjects the advertiser and the printer to a forfeiture of 50l. each.

11. Common barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty's subjects, either at law or otherwise. (s) (33) The punishment for this offence in a common person is by fine and imprisonment; but if the offender (as is too frequently the case) belongs to the profession of the law, a barretor who is thus able as well as willing to do mischief ought also to be disabled from practicing for the future. (1) And indeed it is enacted, by statute 12 Geo. I. c. 29, that if any one who hath been convicted of forgery, perjury, subornation of perjury, or common barretry, shall practice as an attorney, solicitor, or agent, in any suit, the court, upon complaint, shall examine it in a summary way, and, if proved, shall direct the offender to be transported for seven years. Hereunto may also be referred another offence of equal malignity and audaciousness, that of suing another in the name of a fictitious plaintiff; either one not in being at all, or one who is ignorant of the suit. This offence, if committed in any of the king's superior courts, is left, as a high contempt, to be punished at their discretion. But in courts of a lower degree, where the crime is equally pernicious but the authority of the judges not equally extensive, it is directed, by statute 8 Eliz. c. 2, to be punished by six months' imprisonment, and treble damages to the party injured. (34)

(q) 1 Hawk. P. C. 125.

Stiernh. de jure Goth. l. 3, c. 5.

(s) 1 Hawk. P. C. 243.
(t) Ibid. 244.

'Compounding a crime is committed by agreeing not to prosecute it, when the party so agreeing knows it to have been committed."

Wharton, Cr. L. vol. 2, 1559, p. 440:

"The agreement not to prosecute constitutes the offence; and if a person, from whom goods are stolen, take them, or other amends, on such agreement, the offence is complete, notwithstanding he may be afterwards compelled, by process, to prosecute. The bargain and acceptance of the reward makes the offence, if the party forbears to prosecute, until coerced by process. But the barely taking again one's own goods which have been stolen is no offence at all, unless some favor be shown to the thief."

Archbold, Crim. Pr. & Pl. 2, p. 1852.

"The burden requires proof of the felony as upon an indictment therefor, and that the defendant received money or money's worth from the thief to forbear a prosecution, or cease one already commenced."

Bailey on Onus Probandi, 454 (1886). Russell on Crimes, I, *194.

(31) Watson v. The State, 29 Ark. 299, 302 (1874). Forshner v. Whitcomb, 44 N. H. 14, 16 (1862).

(32) ["Consider him who would conceal a theft and secretly receive a compensation for it, without the knowledge of the judge, in the same light as the thief."]

(33) Bishop Cr. L. 2 541, p. 333; 2, 64, p. 36. Malone's Crim. Brief, 344 (1886). Disturbing the peace, making false inventions, propagating evil reports and calumnies, and spreading false and groundless rumors, whereby discord and disquiet may ensue amongst neighbors, may properly be ranked under the head Barretry. I Inst. 368. I Hawk. P. C. 243. See 1 Hale, P. C. c. 27, Bac. Abr. Barretry, I Russell, 185, on this subject. See also the Case of Barretry, & Co. Rep. 36, b. No one can be convicted for a single act of barretry; for every indictment for that offence must charge the defendant with being a common barretor. In a late case in the King's Bench, where an attorney, without any corrupt or unworthy motives, prepared a special case in order to take the opinion of the court upon the will of a testator, and suggested several facts which had no foundation, he was held to be guilty of a contempt and fined 30l. In re Elsam, 5 D. and R. 389; 3 B. & C. 597.-CHITTY.

(34) Russell on Crimes, 1, *267.

12. Maintenance is an offence that bears a near relation to the *135] former, being an officious intermeddling in a suit that *no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it;(u)(35) a practice that was greatly encouraged by the first introduction of uses. (w) This is an offence against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression. And therefore, by the Roman law, it was a species of the crimen falsi(36) to enter into any confederacy, or do any act, to support another's lawsuit, by money, witnesses, or patronage. (x) A man may, however, maintain the suit of his near kinsman, servant, or poor neighbor, out of charity and compassion, with impunity.(37) Otherwise, the punishment by common law is fine and

(u) 1 Hawk. P. C. 249. Dr. & St. 203.

(x) FJ. 48, 10, 20.

(35) "The purchase of the debt due to the Morris Canal and Banking Company from the Long Island Railroad Company, by the plaintiff, did not involve the offence of either maintenance or champerty. It was a purchase of the whole demand, and the purchaser brought this suit not to support or maintain the title of another, but to support and maintain his own title. The plaintiff entered into no agreement to maintain or assist another with money or otherwise, to prosecute or defend a suit in which he had no interest; nor did he enter into an agreement to carry on a suit at his own expense, in consideration of having a part of the matter sued for." Hoyt v. Thompson, 5 Ñ. Y. 320, 347 (1851).

Gruber v. Baker, 20 Nevada, 453, 484 (1890). Quigley v. Thompson, 53 Ind. 317, 320 (1876). Thompson v. Marshall, 36 Ala. 504, 512 (1860). Rives et al. v. Weaver Adm'r, 36 Miss. 374, 383 (1858). Thalimer v. Brinkerhoff, 20 Johns. (N. Y.) 384, 399 (1823). Manning v. Sprague, 148 Mass. 18, 20 (1888).

"Contracts for the maintenance of suits are void; maintenance being an indictable offence. So of contracts involving champerty, embracery, and the buying of pretended titles." Metcalf on Contracts, 2 ed. (Heard) *228, p. 265.

A party acting in good faith, may lawfully employ an unprofessional agent, to aid and assist in conducting a suit, in like manner as he may employ an agent in any other lawful business. In this case Sherley executed a bond to Riggs on good consideration, binding himself to attend to the defence of a suit prosecuted against Riggs, and to pay all damages and costs that might be recovered. It was insisted this bond was void for maintenance, but the court held otherwise. Sherley v. Riggs, 11 Humph. (Tenn.) 53, 54 (1850).

"It signifies a malicious, or, at least, an officious interference in a pursuit, in which the party has no interest to assist, either with money or advice, to prosecute or defend the action." Nichols v. Bunting, 3 Hawks. (N. C.) 86, 88 (1824).

Russell on Crimes, 1, *254:

Purchasing negotiable notes and suing on them does not constitute maintenance. Bragg v. Raymond, 65 Mass. 274, 276 (1853).

See Bradlaugh v. Newdegate, Law Reports, 11, Q. B. D. 1, 5 (1883) for definitions of maintenance by several writers, and a general treatment of the subject.

"But if the party has any interest in the thing in dispute, or has a fair and reasonable ground for thinking that he has rights in common with other parties, he may lawfully enter into an agreement with them for the prosecution or defence of those rights." Addison on Contracts, vol. 2, *1139.

A. gave B. an instrument in writing, stating that he had received from B. a deed for land, for which he was to pay B. $50, if he would take that sum, before any decision was made, as to the right of the land; but, if B. would wait until A. could procure a decision, according to law, so that he, A., would recover the land from the tenant in possession, he then promised to pay $100. Held, this contract was not subject to the imputation of maintenance, and that a recovery could be had thereon. Nichols v. Bunting, 3 No. Car. (Hawks.) 86, 88.

It is not maintenance for a defendant in a suit, having a common interest with other defendants, to purchase from them their interest in the property in litigation, with "the hires, rents and damages" which may accrue in the suit, he assuming their liability for costs, etc. Thompson v. Marshall, 36 Ala. 504, 512.

(36) [Forgery.]

(37) "So, also, if money be advanced from motives of friendship and charity, and not of speculation, to a poor person, to enable him to prosecute a suit, it is not maintenance.