Page images

of the law.

other person.

who cannot speak English, to a counsellor and inform him of his

case. (t) In respect of A counsellor, having received his fee, may lawfully set forth his the profession 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

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 attorneys, can, in any case, lawfully lay out their own money in another's cause. (u)

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. (v) In the construction of this statute it hath been holden 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 præcipe against a poor man having nothing in the land, on purpose to oust the true tenant, or to procure an attorney to appear 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. (w) In most of these cases the Court would probably grant an attachment against the offender

on motion. (x) Champerty.

2. Champerty is a species of maintenance, being a bargain 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. (y) It is defined in the old books to be, the unlawful maintenance of a suit, in consideration of some bargain to have part of the thing in dispute, or some profit out of it. (2) Little is to be met with in modern books upon this subject : but the statutes, and resolutions

upon their construction, may be shortly noticed. Westm. 1, c. The statute Westminster 1, (3 Edw. 1,) c. 25, enacts, that "no 26. No officer officers of the King, by themselves nor by others, shall maintain tain pleas for pleas, suits, or matters, hanging in the King's courts, for lands, tenelands, &c., to

ments, or other things, for to have part or profit thereof, by covethereof.

nant made between them; and he that doth shall be punished at the King's pleasure.” By the Courts mentioned in this statute it has been held that courts of record only are intended; and it has also

for a

bave part

(t) Bro. tit. Maintenance 14. Bac. Abr. tit. Maintenance (B) 4. 1 Hawk. P. C. c. 83, s. 36, 37.

(u) 2 Inst. 564. Bac. Abr. tit. Maintenance (B) 5. 1 Hawk. P. C. c. 83, s. 28, 29, 30.

(v) 2 Inst. 215. Bac. Abr. and Hawk. id. ibid. The statute enacts that the offender shall be imprisoned for a year and a day, and shall not plead again if he be a


(w) 2 Inst. 215. Dy. 362. 1 Hawk. P. C. c. 83, s. 33, et seq.

(r) Bac. Abr. tit. Maintenance in the margin.

(y) 4 Blac. Com. 135.

(2) Per Tindal, C. J., Stanley v. Jones, 7 Bing. 377. 5 M. & P. 193.

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 plea wherein it is alleged be determined or not. (b)

The statute Westminster 2, (13 Edw. 1,) c. 49, enacts, that “ the Westm. 2, c. chancellor, treasurer, justices, nor any of the King's council, no clerk 49: Certain of the chancery, nor of the exchequer, nor of any justice or other receive any officer, nor any of the King's house, clerk ne lay, shall not receive church, land, any church, nor advowson of a church, land, nor tenement, in fee, &c., so long as

thing in by gift, nor by purchase, nor to farm, nor by champerty, nor other- plea. wise, 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 sell.” 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)

The 28 Edw. 1, c. 11, reciting that the King had theretofore or- Extended by dained by statute that none of his ministers should take no plea for 28 Edw. I, maintenance, by which statute other officers were not bounden, enacts, that “the King will that no officer, nor any other (for to

part of the thing in plea) shall not take upon him 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 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 statule

(a) See the authorities collected in 1 (6) Id. ibid. Hawk. P. C. c. 84, s. 3, et seq. Bac. Ab. (c) 2 Inst. 484, 485. tit. Champerty.

(d) I Hawk. P. C. c. 84, s. 12.


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) A bargain by a man, who has evidence in his own possession respecting a matter in dispute between third persons, and who at the time professes to have the means of procuring more evidence, to purchase from one of the contending parties at the price of the evidence, which he so possesses or can procure, an eighth part or share of the sum of money,

which shall be recovered by means of the production of that evidence, is an illegal agreement; and if there be any difference between such a contract

, and direct champerty, it is strongly against the legality of such contract; as besides the ordinary objection, that a stranger to the controversy has acquired an interest to carry on the litigation to the uttermost extent, by every influence and means in his power, the bargain to furnish and to procure evidence for the consideration of a money payment in proportion to the effect produced by such evidence, has a direct tendency to pervert the course of justice. (f) So where a bill was filed for the purpose, amongst other things of declaring an agreement void, which had been made by a seaman for the sale of his chance of prize money to his prize agents, who were to carry on the suit, Sir W. Grant, M. R., expressed an opinion that the agreement was void, as amounting to champerty. (9)

3. Another species of maintenance appears to be the offence of buying or selling a pretended title ; of which it is said in the books that it seems to be a 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. (h) Offences of this kind are also restrained by several statutes. The i 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. (i) 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 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

Of buying or selling a pretended title.

(e) Bac. Abr. tit. Champerty. I Hawk. P. C. c. 84, s. 14, et seq. 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.

(J ) Stanley v. Jones, 7 Bing. 369. 5 M.

& P. 193. Potts v. Sparrow, 6 C. & P. 749.

(9) Stevens v. Bagwell, 15 Ves. 139.

(h) Bac. Abr. Maintenance (E). I Hawk. P. C. c 86, s. 1, Moore, 751. Hob. 115. Plowd. 80.

(i) But as between the feoffor and feoffee, feoffments of this kind are effectual. Co. Lit. 369.



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. (j).

The offences of champerty and buying of titles, laid or alleged in Place of trial any declaration or information, may be laid in any county, at the for champerty pleasure of the informer. (k)

and buying of By the common law all unlawful maintainers are not only liable Punishment of to render damages in an action at the suit of the party grieved, but maintenance may also be indicted and fined, and imprisoned, &c.; and it seems

by common that a court of record may commit a man for an act of maintenance in the face of the Court. (1)

Some pains and penalties are also attached to this offence by By statute. 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

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. (m)


(1) 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 seq.

(k) 31 Eliz. c. 5, s. 4. 1 Hawk. P. C. c. 84, s. 20, and c. 86, s. 18.

(1) 2 Roll. Abr. 114. 2 Inst. 208. Hetl. 79. 1 Hawk. P. C. c. 83, s. 38. Bac. Abr. tit. Maintenance (C).

(m) For the construction of these statutes see l Hawk. P. C. c. 80, s. 43, et seg.




Embracery, EMBRACERY is another species of maintenance, and consists in such Corrupting or practices as tend to affect the administration of justice by improinfluencing

perly working upon the minds of jurors. It seems clear that any jurors.

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 go 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. (6)

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) How far jus

The law will not suffer a mere stranger so much as to labour a tifiable.

juror 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 so far. And no one whatsoever can justify the labouring a juror pot

to appear. (e) Punishment of Offences of this kind subject the offender to be indicted and enibracery. (a) I Hawk. P. C. c. 86, s. 1, 5. 4 Blac. (c) | Hawk. P. C. c. 85, s. 3.

(d) Ante, 177, et seq.
(6) 1 Hawk. P. C. c. 85, s. 4. The (e) 1 Hawk. P. C. c. 85, s. 6.
King v. Opie and others, I Saund. 301.

Com. 140.

« PreviousContinue »