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cular offence of ingrossing still remained an offence at common law, and was calculated to create an artificial scarcity where none existed in reality, and to aggravate that calamity where it did exist. (*)
An indictment for ingrossing a great quantity of fish, geese, and Indictment. ducks, without specifying the quantity of each, has been held to be bad. (a) And an indictment for ingrossing magnam quantitatem straminis et foeni was quashed for not mentioning how many loads of each. (6)
It is said, that by an ancient statute the offender was to be Punishment. grievously amerced for the first offence; for the second to be condemned to the pillory; for the third to be imprisoned; and, for the fourth, to be compelled to abjure the vill. And there seems to be no doubt but that, at this day, all offenders of this kind are liable to a fine and imprisonment, answerable to the heinousness of their offence, upon an indictment at common law. (c)
Monopolies are much the same offence in other branches of trade Of monopolies. that ingrossing is in provisions : being a license or privilege allowed by the King for the sole buying and selling, making, working, or using of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. (d) They are said to differ only in this --that monopoly is by patent from the King, ingrossing by the act of the subject, between party and party; and have been considered as both equally injurious to trades and the freedom of the subject, and therefore equally restrained by the common law. (e) By the common law, therefore, those who are guilty of this offence are subject to fine and imprisonment, the offence being malum in se, and contrary to the ancient and fundamental laws of the kingdom; and it is said that there are precedents of prosecutions of this kind in former days. () And all grants of this kind, relating to any known trade, are void by the common law. (g)
But, notwithstanding their illegality, monopolies had been carried to an enormous height during the reign of Queen Elizabeth; the evil was, however, in a great measure remedied by the 21 Jac. 1, c. 3, which declares them to be contrary to law, and void; (except as to patents not exceeding the grant of fourteen years, to the authors of new inventions; and except also patents concerning printing, saltpetre, gunpowder, great ordnance, and shot,) and monopolists are punished with the forfeiture of treble damages and double costs to those whom they attempt to disturb. (h)
It is worthy of observation, that, as our laws on the one hand The undue acarefully protect the people from the arts of those who would unduly the price of our raise the price of the comforts and necessaries of life; so, on the native comother, they protect the fair trader from impositions which may have modities is puthe effect of unduly lowering the price of the article in which he nisbable. deals. Thus, the abatement by undue means of the price of our
(2) Rex o. Waddington, Hil. T. 41 (d) 4 Bla. Com. 158. 3 Inst. 181. Geo. 3. 1 East, Rep. 167.
(e) Skin. 169. (a) Rex n. Gilbert, 1 East, Rep. 583. (f) 3 Inst. 181. 2 Inst. 47, 61. Bac. (b) Anon. Cro. Car. 381.
Ab. tit. Monopoly (A) note (b). 2 Hawk. P. C. c. 25, s. 74. Rex v. Gibbs, (9) 1 Hawk. P. C. c. 79, s. 1. I Str. 497. Rex d. Foster, 1 Lord Raym. (h) Sect. 4. And see further upon the 475.
subject of monopolies, 1 Hawk. P. C. c. (c) 1 Hawk. P. C. c. 80, s. 5.
79.' Bac. Abr. tit. Monopoly.
native commodities is punishable by fine and ransom: (i) and a case is mentioned where certain persons came to Coteswold, and said, in deceit of the people, that there were such wars beyond the seas that wool could not pass or be carried beyond sea, whereby the price of wools was abated ; and presentment thereof being made, the defendants, having appeared, were, upon their confession, put to fine and ransom. (k)
(i) 3 Inst. 196, referring to 23 Ed. 3, c. 6. 13 Rich. 2, c. 8, Inter leges Ethelstani, (k) 3 Inst. 196.
CHAPTER THE TWENTIETH.
OP MAINTENANCE AND CHAMPERTY, AND OF BUYING AND SELLING
1. MAINTENANCE seems to signify an unlawful taking in hand or Maintenance. 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. (6) 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) As to maintenance, it is laid down, that whoever assists another Instances of
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 maintenance, must be equally criminal at common law. (e) And a person may
(a) Co. Lit. 368 b. 2 Inst. 208, 212, for robbery and violence, men entered into 213. 1 Hawk. P. C. c. 83, s. 1, 2. Bac. formal combinations to support each other Ab. tit. Maintenance. This kind of mainte- in lawsuits ; and it was found requisite to nance is called in the books ruralis, in check this iniquity by act of parliament." distinction to another sort carried on in 2 Hume, 320, referring to the statute of courts of justice, and therefore called conspirators. Edw. I. curialis. It is punishable at the King's (d) 1 Hawk. P. C. c. 83, s. 4, and the suit by fine and imprisonment, whether the numerous authorities cited in the margin. matter in dispute any way depended in (e) Bac. Ab. tit. Maintenance, (A). 1 plea or not; but is said not to be action- Hawk. P. C. c. 83, s. 12, where it is said, able.
that if it plainly appear that the money (6) 1 Hawk. P. C. c. 83, s. 3. Bac. was given merely with a design to assist in Abr. tit. Maintenance. 4 Bla. Com. 134. the prosecution or defence of an intended This kind of maintenance is called curiulis. suit, which afterwards is actually brought, See ante, note (a).
surely it cannot but be as great a misde(c) Co. Lit. 368. 1 Hawk. P. C. c. 83, meanor in the nature of the thing and 1.3. The abuse of legal proceedings by equally criminal at common law as if the oppressive combinations to carry them into money were given after the commencement effect is observed by Mr. Hume to have of the suit ; though perhaps it may not in speedily appeared upon the establishment strictness come under the notion of mainteof the laws in the time of Edward I. He says, " instead of their former associations
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) Ănd 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 anything 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 anything 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 become justifiable from the circumstances under which they are 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 the thing in variance, as those who have a reversion expectant 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
(f) 1 Hawk. P. C. c. 83, s. 13. Bac. held guilty of maintenance. Nay, if he Ab. tit. Maintenance ( A).
officiously gave evidence, it was mainte(9) Bro. tit. Maintenance, 7, 14, 17, &c. nance ; so that he must have had a sub1 Hawk. P. C. c. 83, s. 5, 6. But qu. pæna, or suppressed the truth. That such how far this would be acted upon at the doctrine, repugnant to every honest feeling present day; and see the judgment of of the human heart, should be laid aside, Buller, J., in Master v. Miller, 4 T. R. must be expected." 340, where he says, It is curious, and not (h) 1 Hawk. P. C. c. 83, s. 7. Bac. altogether useless, to see how the doctrine Ab. tit. Maintenance (A). of maintenance has from time to time been (i) i Hawk. P. C. c. 83, s. 8. received in Westminster Hall. At one time, (k) Ibid. s. 9. Bac. Ab. tit. Maintenance not only he who laid out money to assist (A). another in his cause, but he that by his (1) Bac. Abr. tit. Maintenance (B). 1, friendship or interest saved him an expense Hawk. P. C. c. 83, s. 14, 15, &c. that he would otherwise be put to, was
In respect of an interest in the thing in variance.
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 á man's bail may take care to have his appearance recorded: but, as some say, they cannot safely intermeddle further. (n)
Where a count stated that Yeoman had deposited certain money, in the hands of the plaintiff, which the plaintiff had delivered to the defendant at his request, and that Yeoman threatened to bring an action against the plaintiff to recover the money, and thereupon, in consideration that the plaintiff, at the request of the defendant, would defend any action Yeoman should commence, the defendant undertook to save the plaintiff harmless; that Yeoman brought an action to recover the money, and that the plaintiff defended it with the privity and consent of the defendant; it was held that this was not maintenance. (0)
Whoever is of kin, or godfather to either of the parties, or related In respect of þy any kind of affinity still continuing, may lawfully stand by at the kindred or 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 husband of such an heiress. (p) Much of the law relating to the maintenance which a lord may In respect of
the relation give to his tenant would hardly be applicable at the
of lord and It seems to have been the better opinion that the lord might justify tenant, master laying out his own money in defence of his tenant's title, where the and servant. lands were originally derived from the lord, but that he could not maintain the tenant in respect of lands not holden of himself. (9)
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. (r) And a servant cannot lawfully lay out any of his own money to assist the master in his suit. (8)
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.
(m) Id. ibid. and see the judgment of (p) Bac. Abr. tit. Maintenance (B.) Buller, J., in Master o. Miller, 4 T. R. 1 Hawk. P. C. c. 83, s. 26. 340, et seg:
(7) 1 Hawk. P. C. c. 83, s. 29. (ni Hawk. P. C. c. 83, s. 24, 25. (-) Bro. tit. Maintenance 44,52. 1 Hawk. Bac. Abr. tit. Maintenance (B).
P. C. c. 83, s. 31, 32, 33. (0) Williamson v. Henley, 6 Bing. 299. (s) 1 Hawk, id. s. 34. VOL. I.