Deranged per sons likely to commit crime. § 3. And for the better prevention of crimes being committed 39 & 40 G. 3. by persons insane, if any person shall be discovered and appre- c. 94. hended under circumstances that denote a derangement of mind, and a purpose of committing some crime, for which, if committed, he would be liable to be indicted, and any justice before whom such person may be brought shall think fit to issue a warrant for committing such person as a dangerous person suspected to be insane, such cause of commitment being plainly expressed in the warrant, the person so committed shall not be bailed, except by two justices, one whereof shall be the justice who issued such warrant, or by the quarter sessions, or by one of the judges or lord chancellor, lord keeper, or commissioners of the great seal. In the case of an assault and battery, where the jury found that the defendant was insane, both at the time of the commission of the offence and of the trial, and acquitted him on that account, on reference to the judges, they held that 39 & 40 G. 3. c. 94. § 2. extended to all offences; and that the order of the court for keeping him in custody under that section was, therefore, good. R. v. Little, C. C. R. 430. The judges have held, that in a trial where the insanity of the prisoner is in question, it was competent to receive the evidence of a medical person in regard to the symptoms of insanity, and the causes likely to produce a paroxysm; but they doubted whether he should be allowed to give his opinion as to the insanity of the prisoner upon the other evidence, which was the very point the jury were to decide. R. v. Wright, C. C. R. 456. 39 & 40 G. 3. c. 9. s. 2. extends to misdemeanors. Opinion of medical person, how far evidence as to fact of insanity. Form of commitment under 39 & 40 G. 3. The prisoner having been committed under 39 & 40 G. 3. c. 9. §3. as a dangerous lunatic, was brought into court by habeas corpus; and objections were made, that the commitment did not shew that any evidence had been taken on oath, nor did it mention c. 9. s. 3. the name of the party whom the prisoner shewed a purpose of assaulting. The court, however, held that it was not to be considered as a commitment in execution, nor to receive the same strict construction; but that it was a commitment to prevent mischief, and, upon the whole, might be considered as sufficiently certain, and the prisoner was remanded. R. v. Gourlay, 7 B. & C. 669. S. C. antè, tit. Commitment. For the form, see post. By 9 G. 4. c. 40. § 54., "In all cases where any person shall be kept in custody as an insane person by order of any court, or by his majesty's order subsequent thereunto, it shall and may be lawful for any two justices of the peace of the county where such person shall be so kept in custody, to inquire into and ascertain, by the best legal evidence that can be procured under the circumstances of personal legal disability of such insane person, the place of the last legal settlement, and the circumstances of such person; and if it shall not appear that he or she is possessed of sufficient property which can be applied to his or her maintenance, it shall and may be lawful for such two justices to make order, under their hands and seals, upon such parish where they adjudge him or her to be legally settled, to pay such weekly sum for his or her maintenance in such place of custody as one of his majesty's principal secretaries of state shall, by writing under his hand from time to time direct; and where such place of settlement cannot be ascertained, such order shall be made upon the treasurer of the county where such person shall have been appre 9 G. 4. c. 40. Where persons charged with offences are insane, justices to inquire into their settlement, and make order for their main tenance. 9 G. 4. c. 40. Appeal. Persons convicted of offences, becom. ing insane during imprisonment, may be removed to a county asylum, by order of the secretary of state. hended; but if it shall appear that such person is possessed of such sufficient property as aforesaid, then such justices shall order and direct the same to be applied to pay and satisfy the expence of the maintenance of such person, in the manner herein-before directed: Provided always, that the churchwardens and overseers of the parish in which the justices, or the major part of them, shall adjudge any insane person to be settled, may appeal against such order to the general quarter sessions of the peace to be holden for the county where such order shall be made, in like manner and under like restrictions and regulations as against any order of removal, giving reasonable notice thereof to the clerk of the peace of such county, who shall be respondent in such appeal; which appeal the justices of the peace assembled at the said general quarter sessions are hereby authorised and empowered to hear and determine, in the same manner as appeals against orders of removal are now heard and determined." § 55. "If any person, while imprisoned in any prison or other place of confinement in England, under any sentence of imprisonment or transportation, shall become insane, and it shall be duly certified by two physicians or surgeons that such person is insane, it shall be lawful for one of his majesty's principal secretaries of state to direct, by warrant under his hand, that such person shall be removed to such county lunatic asylum, or other proper recep tacle for insane persons, as his majesty's said principal secretary of state may judge proper and appoint; and every such person so removed shall remain under confinement in such county lunatic asylum, or other proper receptacle as aforesaid, or in any other county lunatic asylum, or other proper receptacle, to which such person may be removed by any like order, until it shall be duly certified to one of his majesty's principal secretaries of state, by two physicians or surgeons, that such person has become of sound mind; whereupon his majesty's said secretary of state is hereby authorised, if such person shall still remain subject to be continued in custody, to issue his warrant to the keeper or other person having the care of any such county lunatic asylum, or other proper receptacle as aforesaid, directing that such person shall be removed back from thence to the prison or other place of confinement from whence he shall have been taken; or if the period of imprisonment or custody of such person shall have expired, that he shall be discharged." Form of Warrant of Commitment under 39 & 40 G. 3. c. 94. §3. See 7 B. & C. 669. WHEREAS [Robert Gourlay] hath been discovered and appre hended under circumstances that denote a derangement of mind, and a purpose of committing a crime (that is to say, an assault and breach of the peace), for which, if committed, he would be liable to be indicted; and the said [Robert Gourlay] being brought before me, one of his majesty's justices of the peace in and for the said county, and it appearing to me that I ought to issue a warrant for committing him as a dangerous person suspected to be insane, these are, therefore, to command you, and each of you, to receive into your custody the body of the said [Robert Gourlay], herewith sent, as a dangerous person suspected to be insane, and him safely to keep in your custody until he shall be bailed, as directed by the statute in that case made and provided, or until he shall be discharged by due course of law; and, for so doing, this shall be your sufficient warrant. Given under my hand and seal this 25th day of June, T. H. (L. s.) 1824. Hadmen. See Lunatics. Maim. MAIM is such a hurt of any part of a man's body, whereby he Definition. is rendered less able in fighting either to defend himself, or annoy his adversary; for the members of every subject are under the safeguard and protection of the law, to the end a man may serve his king and country when occasion shall be offered. 1 Haw. c. 44. § 1. 1 East's P. C. 393. A person who even maims himself, or procures another to maim Person maimhim, that he may have more colour to beg; or disables himself to ing himself. prevent being pressed for a soldier; is subject to fine and imprisonment at common law; and so is the party by whom it was effected at the other's desire. Wright's case, Leicester Ass. 1 Jac. 1. Co. Lit. 127. a. 1 Hale, 412. 1 East's P. C. 396. The cutting off, or disabling, or weakening a man's hand or fin- Maims at comger, or striking out his eye or foretooth, or castrating him, are mon law, what. said to be maims; but the cutting off his ear, or nose, were not esteemed maims at the common law, because they do not weaken but only disfigure him. 1 Haw. c. 44. § 2. It is said, anciently castration was punished with death, and other maims with the loss of member for member; but afterwards no maim was punished in any case with the loss of life or member, but only with fine and imprisonment. 1 Haw. c. 44. § 2. If the maim come not within the provisions of any stat., yet it Maim indictis indictable at the common law, and may be punished by fine and able at common imprisonment; or the party injured may bring an action of tres- law. pass; in which he shall recover damages. 2 Haw. c. 23. § 16. 22. 4 Blac. Com. 206. It is not every trifling assault that will justify a grievous and Trifling assault immediate mayhem, such as cutting off a leg or hand, or biting will not justify off a joint of a man's finger, unless it happened accidentally, a maim. without any cruel and malignant intention, or after the blood was heated in the scuffle; but it must appear that the assault was in some degree proportionable to the mayhem. 1 East's P. C. 402. It doth not seem that in maiming there can be accessaries after the fact. 2 Haw. c. 29. § 4. 5. Maintenance, what. In the country. In courts of justice. Maintenance. Champerty. Embracery. Exceptions; common interest. Affinity. Maintenance. BUYING of titles belongeth not to this place, but is treated of under a title of its own. I. Of Maintenance in general. [1 Ed. 3. st. 2. c. 14. - 20 Ed. 3. c. 4. — 1 R. 2. c. 4. II. Of Champerty in particular. [3 Ed. 1. c. 25.-28 Ed. 1. c. 11.. – 33 Ed. 1. st. 3.1 R. 2. c. 9.-31 El. c. 5.] III. Of Embracery in particular. [32 H. 8. c. 9. - 6 G. 4. c. 50.] I. Df Maintenance in general. Maintenance (manu tenere) is an unlawful taking in hand or upholding of quarrels or suits to the disturbance or hindrance of common right. 1 Haw. c. 83. § 1. 4 Blac. Com. 134. 1 Russ. 266. And it is twofold; technically termed ruralis et curialis. One in the country; as where one assists another in his pretensions to certain lands, by taking or holding the possession of them for him by force or subtlety; or where one stirs up quarrels and suits in the country, in relation to matters wherein he is no way concerned. And this kind of maintenance is punishable at the king's suit by fine and imprisonment, whether the matter in dispute any way depended in plea or not; but it is said not to be actionable. Id. §§ 1.2. be Another in the courts of justice: where one officiously inter meddles in a suit depending in any such court, which no way longs to him, by assisting either party with money or otherwise in the prosecution or defence of any such suit. 1 Haw. c. 83. §§ 1, 2. Of this second kind of maintenance, there are three species:First, where one maintains another, without any contract to have part of the thing in suit; which generally goes under the common name of maintenance. Secondly, where one maintains one side to have part of the thing in suit; which is called champerty. Thirdly, where one laboureth a jury; which is called embracery. Id. § 3. But it seemeth to be agreed, that wherever any persons claim a common interest in the same thing, as in a way, churchyard, or common, by the same title, they may maintain one another in a suit relating to the same. Id. § 18. Also, that whoever is any way of kin or affinity to the party may counsel and assist him, but that he cannot justify the laying out any of his own money in the cause unless he be either father, son, or heir apparent. (a) Id. § 20. (a) It is curious and not altogether useless to see how the doctrine of maintenance has from time to time been received in Westminster Hall. At one time not only he who laid out money to assist another in his cause, but he that by his friendship or interest saved him an expence which he would otherwise be put to, was held guilty of maintenance. Nay, if he officiously gave evidence, it was maintenance; so that he must have had a subpoena, or suppress the truth. That such doctrine, repugnant to every honest feeling of the human heart, should be soon laid aside, must be expected. Per Buller J. in Master v. Miller, 4 T. R. 340. Also, that any one in charity may lawfully give money to a Charity. poor man, to enable him to carry on his suit. 1 Haw. c. 83. § 26. 1 Russ. 179. 4 Blac. Com. 135. common law, as tending to oppression. It seemeth that all maintenance is not only malum prohibitum How punishby statute, but is also malum in se, and strictly prohibited by the able by the common law, as having a manifest tendency to oppression; and therefore it is said that all offenders of this kind are not only liable to an action of maintenance at the suit of the party grieved, wherein they shall render such damages as shall be answerable to the injury done to the plaintiff, but also that they may be indicted as offenders against public justice, and adjudged thereupon to such fine and imprisonment as shall be agreeable to the circumstances of the offence. Also it seemeth that a court of record may commit a man for an act of maintenance done in the face of the court. 2 Inst. 212. 1 Haw. c. 83. § 36. By stat. 1 Ed. 3. st. 2. c. 14., no person shall take upon him to maintain quarrels, nor parties in the country, to the disturbance of the common law. By stat. 20 Ed. 3. c. 4., none shall take in hand quarrels other than their own, nor the same maintain, by them nor by other, for gift, promise, amity, favour, doubt, fear, nor other cause, in disturbance of law and hindrance of right. 1 Ed. 3. st. 2. c. 14. How punishable by statute. 20 Ed. 3. c. 4. By stat. 1 R. 2. c. 4., none shall take or sustain any quarrel by 1 R. 2. c. 4. maintenance in the country, nor elsewhere, on pain, if he is a great officer, as the king by advice of the lords shall ordain: if he is a lesser officer, he shall forfeit his office, and be imprisoned and ransomed at the king's will: and all other persons, on pain of imprisonment, and ransom at the king's will. And by stat. 32 H. 8. c. 9. § 3., no person shall unlawfully 32 H. 8. c. 9. maintain or procure any unlawful maintenance in any action, demand, or complaint, in any court having power to hold plea of lands; nor shall unlawfully retain any person for maintenance of any plea to the disturbance or hindrance of justice; on pain of 101., half to the king, and half to him that shall sue within one year. It seemeth, that in an information on this statute, it is not sufficient to say that the defendant maintained the party, without adding that he did it unlawfully. 1 Haw. c. 83. § 45. It is said to have been adjudged, that maintenance of a suit in a spiritual court is neither within this nor any other statute concerning maintenance. Id. c. 83. § 46. It hath been holden that in an information on this statute, it is necessary to shew that a plea was depending; and therefore that it is not sufficient to say that a bill was exhibited. Id. c. 83. § 47. Maintenance must be averred to be unlawful. None in spiritual court. Plea must be pending. A counsellor, having received his fee, may lawfully set forth Counsel. his client's cause to the best advantage; but can no more justify giving him money to maintain his suit, or threatening a juror, than any other person. An attorney also, when specially retained, Attorney. 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 expence, with a promise never to expect repayment; and it is said to be questionable whether solicitors, who are no attorneys, |