"friends." Upon this statute it seems to be agreed that champerty in any action at law is within it; and a purchase of land, pending a suit in equity concerning it, has also been holden to be within the statute; also a lease for life or years, or a voluntary gift of land, pending a plea, is as much within the statute as a purchase for money. But neither a conveyance executed, pending a plea, in pursuance of a precedent bargain, nor any surrender by a lessee to his lessor, nor any conveyance or promise thereof made by a father to his son, or by any ancestor to his heir apparent, nor a gift of land in suit, after the end of it, to a counsellor, for his fee or wages, without any kind of precedent bargain relating to such gift, are within the meaning of the statute. (e) selling a pre tended title. III. Another species of maintenance appears to be the offence of buying or of buying or selling a pretended title; of which it is said in the books that it seems to be an high offence at common law, as plainly tending to oppression, for a man to buy or sell at an under rate a doubtful title to lands known to be disputed, to the intent that the buyer may carry on the suit, which the seller does not think it worth his while to do. And it seems not to be material whether the title be good or bad; or whether the seller were in possession or not, unless the possession were lawful and uncontested. (f) Offences of this kind are also restrained by several statutes. The 1 Rich. 2. c. 9. enacts, that no gift or feoffment of lands or goods in debate under legal proceedings, as mentioned in the statute, shall be made; and that, if made, they shall be holden for none and of no value. (g) And by the 13 Edw. 1. c. 49. no person of the king's house shall buy any title whilst the thing is in dispute, on pain of both the buyer and seller being punished at the king's pleasure. There is also a provision of the statute 32 Hen. 8. c. 9. that no one shall buy or sell or obtain any pretended right or title to land unless the seller, his ancestors, or they by whom he claims, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents or profits for one whole year before; on pain that both seller and buyer shall each forfeit the value of such land, the one half to the king, and the other to him who will sue. (h) The offences of champerty and buying of titles, laid or alleged in any declaration or information, may be laid in any county, at the pleasure of the informer. (i) Place of trial for champerty and buying of titles. Punishment By the common law all unlawful maintainers are not only liable to render damages in an action at the suit of the party grieved, but of mainte (e) 1 Bac. Abr. Champerty, p. 576. 1 Hawk. P. C. c. 84. s. 14. et sequ. But with respect to the counsellor it is said that it seems dangerous for him to meddle with any such gift, since it cannot but carry with it a strong presumption of champerty. 2 Inst. 564. (f) 4 Bac. Abr. Maintenance, (E) p. 494. 1 Hawk. P. C. c. 86. s. 1. Moore 751. Hob. 115. Plowd. 80. (g) But as between the feoffor and feoffee, feoffments of this kind are effectual. Co. Lit. 369. (h) But the statute provides that any person, being in lawful possession by taking the rents and profits, may buy or get the pretended right or title of any other person to the same. And it also provides, that no person shall be charged with these penalties unless sued within a year after the offence. For the construction of this statute, see 1 Hawk. P. C. c. 86. s. 7. et sequ. (i) 31 Eliz. c. 5. s. 4. 1 Hawk. P. C. c. 84. s. 20. and c. 86. s. 18. nance by common law. By statute. may also be indicted and fined, and imprisoned, &c.; and it seems that a court of record may commit a man for an act of maintenance in the face of the Court. (k) Some pains and penalties are also attached to this offence by statute. The 1 Rich. 2. c. 4. enacts, that no person whatsoever shall take or sustain any quarrel by maintenance, in the country or elsewhere, on grievous pain; that is to say, the king's counsellors and great officers, on a pain that shall be ordained by the king himself, by the advice of the lords of this realm; and other officers of the king, on pain to lose their offices and to be imprisoned and ransomed &c.; and all other persons, on pain of imprisonment and ransom. And by the 32 Hen. 8. c. 9. maintenance is subjected to a forfeiture of ten pounds: one moiety to the king, and the other moiety to the informer. (1) (k) 2 Roll. Abr. 114. 2 Inst. 208. Hetl. 79. 1 Hawk. P. C. c. 83. s. 38. Bac. Abr. Maintenance, (C) p. 492. (1) For the construction of these statutes, see 1 Hawk. P. C. c. 83. s. 40. et sequ. CHAPTER THE TWENTY-FIRST. OF EMBRACERY, AND DISSUADING A WITNESS FROM GIVING EVIDENCE. EMBBACERY is another species of maintenance, and consists in Embracerysuch practices as tend to affect the administration of justice by Corrupting or influencing improperly working upon the minds of jurors. It seems clear that jurors. any attempt whatsoever to corrupt or influence, or instruct a jury in the cause beforehand, or in any way to incline them to be more favourable to the one side than to 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 a proper act of embracery, whether the jurors on whom such attempt is made give any verdict or not, or whether the verdict given be true or false. (a) And it has been adjudged that the bare giving of money to another, to be distributed among jurors, is an offence of the nature of embracery, whether any of it be afterwards actually so distributed or not. It is also clear that it is as criminal in a juror as in any other person to endeavour to prevail with his companions to give a verdict for one side by any practices whatsoever; except only by arguments from the evidence which may have been produced, and exhortations from the general obligations of conscience to give a true verdict. And there can be no doubt but that all fraudulent contrivances whatsoever to secure a verdict are high offences of this nature; as where persons by indirect means procure themselves or others to be sworn on a tales in order to serve one side. (b) It is said that generally the giving of money to a juror after the verdict, without any precedent contract in relation to it, is an offence savouring of the nature of embracery: but this does not apply to the reasonable recompence usually allowed to jurors for their expenses in travelling. (c) tifiable. The law will not suffer a mere stranger so much as to labour a How far jusjuror to appear, and act according to his conscience: but it seems clear that a person who may justify any other act of maintenance, (d) may safely labour a juror to appear and give a verdict according to his conscience; but that no other person can justify intermeddling (a) 1 Hawk. P. C. c. 85. s. 1, 5. 4 Blac. Com. 140. (b) 1 Hawk. P. C. c. 85, s. 4. King v. Opie and others, 1 Saund. 301. The (d) Ante, 177, el sequ. Punishment of embracery. Dissuading a witness from giving evidence. so far. And no one whatsoever can justify the labouring a juror not to appear. (e) Offences of this kind subject the offender to be indicted and punished by fine and imprisonment in the same manner as all other kinds of unlawful maintenance do by the common law. (f) They are also restrained by statutes: the 5 Edw. 3. c. 10. enacting that any juror taking of the one party or the other, and being duly attainted, shall not be put in any assizes, juries, or inquests, and shall be commanded to prison, and further ransomed at the king's will; and the 34 Edw. 3. c. 8. enacting that a juror attainted of such offence shall be imprisoned for a year. A subsequent statute 38 Edw. 3. c. 12. enacts that if any jurors, sworn in assizes and other inquests, take any thing, and be thereof attainted, every such juror shall pay ten times as much as he hath taken. "And that "all the embraceors to bring or procure such inquest in the country, to take gain or profit, shall be punished in the same manner " and form as the jurors; and if the juror or embraceor so attainted "have not whereof to make gree in the manner aforesaid, he shall "have the imprisonment of one year." (g) The statute 32 Hen. 8. c. 9. also enacts that no person shall embrace any freeholders or jurors upon pain of forfeiting ten pounds, half to the king, and half to him that shall sue within a year. All who endeavour to stifle the truth, and prevent the due execution of justice, are highly punishable; and therefore the dissuading or endeavouring to dissuade a witness from giving evidence against a person indicted is an offence at common law, though the persuasion should not succeed. (h) (e) 1 Hawk. P. C. c. 85. s. 6. (h) 1 Hawk. P. C. c. 21. s. 15. Rex v. Lawley, 2 Str. 904. See as to mere attempts to commit crimes, ante, p. 44, 45. And see an indictment for dissuading a witness from giving evidence against a person indicted, 2 Chit. Crim. L. 235: and an indictment for a conspiracy to prevent a witness from giving evidence, Rex v. Steventon and others, 2 East. R. 362. And see Rex v. Edwards, post, Book V. Chap. i. CHAPTER THE TWENTY-SECOND. OF BARRATRY, AND OF SUING IN THE NAME OF A FICTITIOUS PLAINTIFF. A BARRATOR is defined to be a common mover, exciter, or main- Definition of tainer, of suits or quarrels, in courts of record, or other courts, as barratry. the county court, and the like; or in the country, by taking and keeping possession of lands in controversy, by all kinds of disturbance of the peace, or by spreading false rumours and calumnies whereby discord and disquiet may grow among neighbours. (a) the offence. But one act of this description will not make any one a barrator, What persons as it is necessary in an indictment for this offence to charge the may commit defendant with being a common barrator, which is a term of art appropriated by law to this crime. (b) It has been holden, that a man shall not be adjudged a barrator in respect of any number of false actions brought by him in his own right: (c) but this is doubted, in case such actions be merely groundless and vexatious, without any manner of colour, and brought only with a design to oppress the defendants. (d) An attorney cannot be deemed a barrator in respect of his maintaining another in a groundless action, to the commencing whereof he was in no way privy. (e) And it seems to have been holden that a feme covert cannot be indicted as a common barrator: (f) but this opinion is considered as questionable. (g) In an indictment for this offence it seems to be unnecessary to Indictment allege it to have been committed at any certain place; because, and proceedings. from the nature of the crime, consisting in the repetition of several acts, it must be intended to have happened in several places; wherefore it is said that the trial ought to be by a jury from the body of the county. (h) As the indictment may be in a general form, stating the defendant to be a common barrator, without (a) Rex v. Urlyn, 2 Saund. 308, note (1). 1 Hawk. P. C. c. 81. s. 1, 2. Co. Lit. 368. 8 Rep. 36. Barrator is said to be a forensic term taken from the Normans. The Islandic and Scandinavian baratta, the Anglo-Norman baret, and the Italian baratta, are all words signifying a quarrel or contention. See the notes to 1 Bac. Abr. 508, Barratry (A). 1 Sid. 282. Reg. v. Hannon, 6 Mod. (c) Roll. Abr. 355. (d) 1 Hawk. P. C. c. 81. s. 3. (g) 1 Hawk. P. C. c. 81. s. 6. (b) 8 Co. 36. Rex v. Hardwicke, 509, Barratry (B). |