liament; alleging, that Tierney had been duly elected; and praying, that he might be declared duly elected. The Plaintiffs in compliance with the direction of the Duke of Portland caused a petition to the effect aforesaid to be prepared and presented; and continued to act as solicitors on the said petition during the whole period, tee. Neither the common law with regard to maintenance and champarty, nor the statute of 32 Henry VIII. ch. 9, made in aid thereof, apply to a trust estate. Baker v. Whiting, 3 Sumner, 476. It is said, however, that it is not strictly maintenance for a stranger to advance money for, or to agree to pay the costs of a suit not yet commenced; for the offence consists in such acts done after a suit is commenced. But Courts of Equity deem such acts as savoring of maintenance; and, therefore, will not enforce any contracts or rights growing out of them. Wood v. Downes, 18 Ves. 125; 2 Story, Eq. Jur. § 1048, note. See Wolcott v. Knight, 6 Mass. 418; Everenden v. Beaumont, 7 Mass. 76; Swett v. Poor, 11 Mass. 549; Brinley v. Whiting, 5 Pick. 348. There are certain peculiar relations in which maintenance is allowed; as in that of father and son; or of an heir apparent; of the husband of an heiress; of master and servant, and the like. Ibid. § 1049. More v. Usher, 7 Sim. 384; Thalimer v. Brinckerhoff, 3 Cowen. 623. And it has been said that brothers may maintain each other. 11 London Law. Mag. 383. But the more important question is, what degree of interest in the subject in dispute will be sufficient to justify maintenance. All persons who have any interest, whether legal or equitable, in a matter in dispute, are justified in using all legal means of enforcing or supporting their claim, and of consequence may bear the expenses of doing so. A mortgagee, for instance, may expend money in defence of the title to the property on which he has his mortgage, even though no party to the suit. And not only may a person who has a direct interest do so, but he who has only a bare contingency, which may possibly never come in esse. Ibid. This rule would seem to warrant any party in maintaining another in asserting or defending any claim in which he is ever so remotely interested, provided he be interested in the claim itself, and not merely collaterally in the issue of the suit, as affecting another claim similarly circumstanced. Ibid. 384. It would seem that those subscriptions or contributions, which sometimes occur, for supporting the cause of another, as in cases of persons sued for an infringement of a patent, are direct acts of maintenance. It is true the old law lays it down that it is not maintenance to advance money in support of a poor man; but the question arises, who is to be considered a poor man? If the mere fact of a person being in bad circumstances will justify maintenance, it may safely be done in almost every instance. It would seem as if no one could be entitled to the description, unless he was actually a pauper, and entitled to sue as such. See the article entitled Champarty and Maintenance, 11 London Law Mag. 369-387. Champarty is so closely allied to maintenance that the two topics are usually discussed together. The odiousness of champarty also is to be traced to the early law; though it has been recognized by recent decisions. 2 Story, Eq. Jur. § 1048; Williams v. Protheve, 3 Y. & J. 129; Thalimer v. Brinckerhoff, 20 Johns. 386; S. C. 3 Cowen. 623; Thurston v. Percival, 1 Pick. 415: Kenney v. Brown, 3 Ridgw. P. C. 502; Stanley v. Jones, 7 Bing. 369; Cholmondeley v. Clinton, 2 Jac. & W. 136. A. was proved to have been the agent of a number of proprietors, associated in the purchase of a tract of land, for the purpose of collecting testimony and employing counsel. While a suit concerning the land was in progress, A. agreed with the complainant, as was alleged in the bill, to allow him 640 acres for part of his compensation for his services. Under these circumstances, it was held that it was immaterial whether the agreement was proved or not, as an agreement to pay counsel a part of the property to be recovered, made pending the litigation, was void. Berrien v. M’Lane, 1 Hoff. 421. Nor is it legal for a Plaintiff's attorney to stipulate to receive a large sum, as one hundred guineas, besides taxed costs, in case he should recover, and no costs in case his client should fail. Guy v. Gower, 2 Marsh. 273. And, according to the English cases, any stipulation out of the usual course of fair remuneratior, or even an apparent gift by a client to an attorney pending a suit, is illegal and void; or at least, may in general be set aside in a Court of Equity. 2 Chitty,

which the same was depending; and advanced very considerable sums on account, amounting in the whole to 34071. 11s. 6d. The petition being determined on or about the 4th of April, 1789, the Plaintiff's delivered their bill of costs to a gentleman, who [*495] then acted as the confidential friend *of the Duke; and not having received the amount they repeatedly applied to the Duke and to Tierney for the same.

The bill then stated several pretences of the Defendant the Duke of Portland, that he was not indebted to the Plaintiffs; and never instructed them to act as his solicitors, and to present such petition; or to expect, that the expense, which might be incurred in presenting and proceeding upon it, should be defrayed by him; and that he repeatedly, after the petition was presented, declared to the Plaintiffs, that he did not consider himself liable; and in particular, that a gentleman, then his confidential friend, by letter communicated to the Plaintiffs, that the Duke did not consider himself liable to any demand in respect of such petition, and apprised the Plaintiffs, that if they proceeded thereon, they must not look to him for payment of the charges, which might be thereby incurred; and that the Plaintiffs being so apprised did proceed thereon upon the credit of Tierney. In answer to these pretences the Plaintiffs made the following charges.

About the beginning of February, 1789, they were informed by Tierney, that he had just seen the Duke of Portland, and that he

General Practice, 28; Popham v. Brooke, 5 Russell 8; Montesquieu v. Sandys, 18 Ves. 302; Wood v. Downes, Ib. 120; Wright v. Proud, 13 Ves. 188. It is notorious, that in many parts of the United States, agreements similar in principle to the several last mentioned, are entered into between counsel and clients, without being regarded as void or penal in their character. It has been said that the old cases with regard to maintenance go farther than would be now sustained by a Court of Equity. Baker v. Whiting, 3 Sumner, 476; but see Swett v. Poor, 11 Mass. 554. And it may be doubted whether the rigor of the ancient law on the subject has not ceased to exercise a salutary influence. If by the usage of society it has fallen into desuetude, it ought to be abolished. Forestalling, regrating and engrossing are described as offences, at the common law, not unlike in their character, champarty and maintenance; but the success of every merchant is achieved by the constant commission of these offences. Engrossing is described as the getting into one's possession, or buying up, large quantities of corn, or other dead victuals, with intent to sell them again. Long, Sales, 101, 102; 3 Inst. 195: Rose v. Maynard, Cro. Car. 231; 4 Black. Com. 158; Rex v. Waddington, 2 East, 142, 167.

This subject has occupied the attention of the able Commissioners in England, embracing Thomas Starkie, Henry Bellenden Ker, William Wightman, Andrew Amos, and David Jardine, to whom has been referred the important duty of digesting the criminal laws. Of maintenance the Commissioners observe, there is nothing immoral in the act itself, nor does it constitute any violation of any public or private right. Champarty is said to stand much on the same principles with maintenance, of which, indeed, it is but a particular species. After a careful inquiry into the nature of these two offences they conclude by submitting that "these offences are of too doubtful policy to render their continuance advisable," and on this account decline to make any detailed digest of the law on the subject. See 5th Report of the Commissioners on Criminal Law, 34-39; also 7th Report, 171. In the 7th Report they also recommend the repeal of the law against forestalling, engrossing, and regrating. See 7th Report of the Com. on Crim. Law, 68.

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was directed by the Duke to instruct the Plaintiff Troward to present the said petition, and to prosecute the same; and that the Plaintiffs believing the said direction to have been received by Tierney from the Duke did present and proceed on such petition on the credit of the Duke in consequence of such direction. The only intimation, they ever received, of the Duke's not considering himself liable was by a letter, dated the 15th of March, 1789, from a friend of the Duke of Portland to the Plaintiff Troward (set forth in the bill) which after suggesting, that it was material to have a consultation on the state of Colchester with the Duke, Mr. Tierney, the Plaintiff Troward and some other persons, and stating some circumstances, which then prevented it, concluded thus:-"Your very handsome offer to me in your letter, of the 3d instant, is most properly considered: but I am desired to say, that it is impossible to think of putting you to the inconvenience, which accepting it would be attended with to you. As things now stand, it is material, that we should turn our attention to the expense incurred, to that which is likely to be incurred, and to the probable judgment of the committee in the end. It seems to me, that the sum, which I mentioned to you and Mr. Tierney to be brought in aid of the expense of the petition, must be exhausted; and that it would be unfair to him not to suggest this to his consideration. You and he are better able to judge of every circumstance than any body else; and as my object in obtaining a consultation on the case has been frustrated, I hope you will be prepared to have it considered as soon as possible; in order that no measure may be pursued, which can tend to produce any difficulty about the expense, or to lead to more than Mr. Tierney may think convenient for him to bear." The Plaintiff Troward being much surprised and alarmed at the conclusion of the said letter showed it to the Defendant Tierney; who expressly declared, that he did not consider himself liable to the costs of the petition; and that he was as aforesaid authorized and directed by the Duke to instruct the Plaintiffs to present and proceed upon it. The Plaintiff Troward answered the said letter; stating, that he had shown it to Tierney; and that it had a good deal alarmed him; as he said, he never intended making any addition to the expense already incurred by him: and that it was understood, that he was not to be at any expense respecting the petition, and reminded the Plaintiff, that he had so informed him in the beginning of the business; and the Plaintiff farther stated, that he conceived the expense incurred at that time to be not less than 13007. The Plaintiffs not receiving any reply proceeded upon the petition; concluding, that if the Duke had intended to withdraw his liability to the costs, he would in consequence of the Plaintiff's letter have declared such intention. The expense then incurred did not exceed 15007. and the Plaintiffs were entitled to be repaid that sum by the Duke, though he had thought proper to withdraw himself from future liability. The Plaintiffs never received any sum on account of their demand except 1000l. which they received from Tierney;

and which they have heard and believe he received from the Duke. The Plaintiffs repeatedly applied to the Duke for payment; and he has not complied with their request of payment; though he has in conversation admitted the justice of the same; and on or about the 27th of June, 1789, the Duke in a letter to Tierney says, he has just heard, that some doubts remain in the Plaintiff's mind respecting Colchester, and desires Tierney to refer him to the letter, which Mr. A. wrote him with the privity and concurrence of the Duke, or to appoint a meeting; that no misunderstanding may remain respecting that business. The Duke considered himself liable to the whole or part of the expense; and has admitted the same within the last six years; but has requested the Plaintiffs not to prosecute their demand, but to wait some time longer.

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The bill then stating, that without a discovery the Plaintiffs cannot make their demand available at law, prayed a discovery with reference to the facts charged; and whether in the communications between them and the Duke the latter did not subsequent to the 15th of March, 1789, refuse to permit the Plaintiff Troward to give his time and attendance without charge; as he could not think of accepting such offer; and whether he did not consider such of fer as amounting to an offer to proceed without any person being responsible; and whether by declining it he did not consider, that he entitled the Plaintiffs to charge some persons, and whom, for the personal attendance and diligence of the solicitor.

Both Defendants demurred generally.

Attorney General [Sir John Scott] Mr. Mansfield, and Mr. Pem berton, for the Defendant, the Duke of Portland. A person standing in the situation of this Defendant would not act the part, the public has a right to expect, if from his feelings, and because he could deny the truth of every syllable of this bill, he should do any thing to destroy that protection by demurrer, which upon grounds of public policy is held out to the whole country. 1st. Nothing is stated calling upon the Duke for an answer: 2dly. The transac tions are of such a sort, that this Court will not endure them to be stated. This Court would never endure even in the ordinary case of real or personal property a bill stating upon the face of it a case of gross maintenance; a maintenance of such a nature, that a Court of justice cannot interpose to give any protection to the efforts of any persons stating themselves to be concerned in it. It is against a standing order of the House of Commons. Can a discovery be enforced to help them to the expense of enabling a Peer to introduce a man into the House of Commons, who would not undertake it for himself? There are two or three acts of Parliament, the last the 28th Geo. III. c. 52, s. 1, requiring, that every petition shall be signed by the person presenting it. There is no writing by the Duke; therefore according to the Statute of Frauds he cannot be charged. The Plaintiffs have not stated, that they have brought or mean to bring an action, or want testimony for it,

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because, if it could be tried, it is clear, Tierney is a competent witness to prove the whole of it; which must be the ground of his demurrer. In Walsh v. The Executors of Lord Clive, the bill was brought by the candidate himself for the expenses of the Worcester election upon Lord Clive's undertaking to pay: Lord Thurlow treated the cause with indignation.

Solicitor General, [Sir John Mitford], Mr. Piggott, and Mr. Fonblanque, for the Plaintiffs. This is not within any of the acts imposing punishment on maintenance. It is determined, that suits in the Ecclesiastical Court are not within any of those acts. They are confined to suits in the Courts of Common Law, except the Act 32 Hen. VIII. c. 9, which extends to the Star Chamber, the Court of Requests and this Court: Tisdale v. Bedington, Cro. Eliz. 594. Hawkins certainly supposes, that the law does not include in the crime of maintenance any suit except in the Courts of Common Law and the extension by the Statute of Hen. VIII.; which is confined to suits respecting lands. This respects, not the election, but the petition; and therefore is not within the resolutions of the House of Commons. These petitions are of recent origin, founded upon an act of Parliament referable to such subjects and very peculiar.

Lord CHANCELLOR [LOUGHBOROUGH]. Without inquiring into the quality of the act, I wish you to state, what could be the consideration in law, that would support the promise. You must state, that the Defendant in consideration, that the Plaintiffs would present and carry on a petition for Tierney, promised to pay the expense. Put this case: a subscription to carry on a petition to the House: I confess, I always thought, there was something of crime in it but be that as it may, if the subscription was in writing, would an action lie for the money subscribed? Upon the Statute of Frauds a collateral promise to answer for the debt of another distinctly supposes, that there is a debt. The debt must be first raised, before you talk of a collateral promise.

For the Plaintiffs. Immateriality is no objection to the discovery. Bishop of London v. Fytche, 1 Bro. C. C. 96. Hindman v. Taylor, 2 Bro. C. C. 7. As to the objection from the Statute of Frauds, that would be an objection at law, but not in this stage. *It might be for a debt to be contracted; for instance, [* 499] goods to be delivered. Both interfering in the original transaction, it is too doubtful to bring it within the Statute. The whole proceeding moves from an alleged contract with the Duke. It was the opinion of Lord Thurlow, that the only effect of the Statute of Frauds against a bill for discovery of an agreement was, that if the agreement was denied, it prevented the party from resorting to evidence (1). Tierney cannot be examined as a witness except upon a release.

(1) The Lord Chancellor observed, that he did not quite assent to that. It is not clear, that Lord Thurlow's final opinion was, as it is here stated. In Whitchurch v. Bevis, 2 Bro. C. C. 559, the plea was after great discussion finally allowed. In the note, ante, page 38, the principal cases upon this subject are collected; and an attempt is made to distinguish the points arising on the Statute.