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CHAPTER THE TWENTIETH.
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. (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) 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 combinations to 213. 1 Hawk. P. C. c. 83. s. 1, 2. 4 carry them into effect is obxrved 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) 1 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. s. 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. s. 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
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. (i) 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 respect of in the thing in variance, as those who have a reversion expectant an interest in
variance, (c) 4 Bac. Ab. 490. Maintenance, “ curious, and not altogether useless, (A). I Hawk. P. C. c. 83. 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 his 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 put to, was held criminal at common law as if the mo- guilty of maintenance. Nay, if he ney were given after the commence- “ officiously gave evidence, it was ment of the suit; though perhaps it “ maintenance; so that he must bave may not in strictness come under the “ had a subpæna, or suppressed the notion of maintenance.
“ truth. That such doctrine, repug. (f) 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. i 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 tenanee (A).
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 affinity.
related by any kind of affinity still continuing, nay lawfully stand 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 the relation
give to his tenant would hardly be applicable at the present time. of lord and tenant, master 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. i 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) I 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 of the laws. 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. (1)
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 facias 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 precipe 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 for “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
thereof. “ be punished at the king's pleasure." By the courts mentioned
(s) Bro. Maint. 14. 4 Bac. Abr. 491. offender shall be imprisoned for a Maintenance (B) 4. 1 Hawk. P. C. c. 83. year and a day, and shall not plead S. 36, 37.
again if he be a pleader. (9 2 Inst. 564. 4 Bac. Abr. 491, (x) 2 Inst. 215. Dy. 362. 1 Hawk. 492. Maintenance (B) 5. 1 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 Inst. 215. Bac. Abr. and Hawk. the margin. id. ibid. The statute cnacts that the () 4 Blac. Cont. 195.
cers not to re
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. (b) Westm.2. c.49. The statute Westminster 2. (13 Edw. 1.) c. 49. enacts, that Certain offi
“ the chancellor, treasurer, justices, nor any of the king's council,
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, &c. so long as the thing is in
“ shall not receive any church, nor advowson of a church, land, 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 “ 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 se'l.” 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 there
tofore ordained by statute that none of his ministers should take c. 11.
no plea for maintenance, by which statute other officers were not bounden, enacts, that “the king will that no officer, nor any other “ (for to have part of the thing in plea) shall not take upon him 6 the business that is in suit; nor none upon any such covenant “shall give up his right to another; and if any do, and he be “attainted thereof, the taker shall forfeit unto the king so much of “ his lands and goods as doth amount to the value of the part that “ he hath purchased for such maintenance. And for this atteindre, “ whosoever will shall be received to sue for the king before the
justices before whom the plea hangeth, and the judgment shall “ be given by them. But it may not be understood hereby, that
any person shall be prohibit to have counsel of pleaders, or of “ learned men in the law for his fee, or of his parents or next
(a) See the authorities collected in (6) Id. ibid.
(d) 1 Hawk. P.C. c. 84. s. 12.
28 Edw. 1.