B. Main. 17. 3 R. Abr. 118. 2 Inst. 564. Moor, 6. F. Main. 21. 2 Roll. 181. Co. Litt. 364. 2 Leon. 48. 3 H. 6. 54. F. Main. 18. giving another friendly advice, what action is proper for him to bring for the recovery of a certain debt, or what method it is safest to take to free him from such an arrest, or what counsellor or attorney is likely to do his business most effectually; for it would be extremely hard to make such neighbourly acts of kindness, which seem rather commendable than blame-worthy, to come under the notion of maintenance, which always seems to imply a contentious and over busy intermeddling in other men's matters, in which respect it is so highly criminal. Yet it is said, that a man of great power, not learned in the law, may be guilty of maintenance, by telling another who asks his advice, that he has a good title. Sect. 12. Also it hath been said, that no one can be guilty of maintenance in respect of any money given by him to another. before any suit is actually commenced; yet if it plainly appear, If a mortgagee, that it was given merely with a design to assist him in the prosenot a party in cution or defence of an intended suit, which afterwards is actually the suit, ad- brought, surely it cannot but be as great a misdemeanor in the nasupport the title, ture of the thing, and equally criminal at common law, as if the it is not mainte- money were given after the commencement of the suit, though perhaps it may not in strictness come under the notion of main vances money to nance. 3 P. W. 375. 47 Ed. 3. 10. B. Champ. 2. (a) 19 E. 4. 3. 9 H. 6. 64. B. Main. 3.53. 2 R. Abr. 117. (b) 6 E. 4. 2. 39 H. 6. 20. tenance. Sect. 15. However, it is certain, that one may as properly be said to be guilty of maintenance, within the meaning of the words" adhuc manu tenet,” in an action of maintenance, for supporting another after judgment, as for doing it hanging the plea; because the party grieved may be discouraged thereby from bringing a writ of error or attaint. As to the SECOND POINT, viz. In what respects some of this kind may be justified. I shall consider the following particulars : 1. How far they are justifiable in respect of an interest in the thing in variance. 2. How far in respect of kindred or affinity. 3. How far in respect of other relations 4. How far in respect of charity. 5. How far in respect of the profession of the law. As to the FIRST of these particulars, viz. How far some acts of this kind are justifiable in respect of an interest in the thing in variance. Sect. 14. It seemeth to be clearly agreed, that if (a) a tenant in tail or for life be impleaded, he in remainder or reversion may lawfully maintain the defence of the suit with his own money. Sect. 15. And upon the like ground it seems to be clear, that if, an action of trespass, &c. brought by or against a (b) lessee for years, the inheritance come into question, the lessor may lawfully 2 R. Abr. 117. lawfully maintain his lessee, and give (a) evidence to prove the (a) 14 H. 6. 7. inheritance in himself; for though the judgment which may be B. Main 23. given against the lessee cannot directly bind his inheritance, yet the verdict may be a prejudice to his title, being given on a supposal of his not having a good one. Sect. 16. Also it hath been admitted as clear law, that if one seised in fee of certain land bring an action of trespass quare clausum fregit, and then alien the land, and afterwards in the trial of the cause it be questioned whether the inheritance at the time of the supposed trespass belonging to the plaintiff or defendant, the alienee may lawfully produce evidence to prove that the inheritance was in the plaintiff, because the plaintiff's title is now become his own. Sect. 17. Also it hath been said, that not only those who have 9 H. 6. 4. a certain interest, but also those who have a bare contingency 2 R. Abr. 117. of such an interest in the lands in question, which possibly may never come in esse, may in like manner lawfully maintain another in an action concerning such lands; from whence it follows, that if I grant to B. that if my lessee for life shall die during my life, that then he shall have the land for ten years, and after my lessee be impleaded, B. may maintain him. 2 Inst. 5. 6. 4. Sect. 18. And it hath been said, that not only those who 14 H. 7. 2. have a contingency of such an interest, which it is in no man's 19 Ed. 4. 3. power to bar them of, if the contingency happen, may justify 21 H. 6. 16. such maintenance, but that those also shall have the same privi- 2 R. A. 115. lege, who by the act of GOD have the immediate possibility of such an interest, though it be in the power of another to deprive them of it; and therefore that an heir apparent may lawfully maintain the ancestor in an action concerning the inheritance of the land whereof he is seised in fee. Sect. 19. But it is said, that the grantee of a reversion, be- 9 H. 6. 64. fore the late statute for amendment of the law which made all 2 R. Abr. 217. attornment needless, could not maintain the tenant of the land 34 H. 6. 30. without attornment, because his possibility was wholly created by the act of the party, and could not be executed but by the voluntary attornment of the tenant, which there was no remedy to compel him to make by the common law; but perhaps the authority of this opinion may be questionable, especially if such grant were made for good consideration: for since those who have only an equitable interest in lands, may lawfully maintain others in actions relating to those lands, as shall more fully be shewn in the twenty-first section, and since the grantor in equity shall stand intrusted for the grantee after the grant, and the tenant may be enforced by a court of equity to attorn to him, I do not see any good reason why such grantee should be esteemed such a stranger to the land, that he may not lawfully defend an action concerning it, in the event whereof he is so nearly concerned. 2 R. Abr. 118. Sect. 20. But it seems clear, that he who is bound to war- 11 H. 6. 41. rant lands, may lawfully maintain the tenant in the defence of B. Main. 51. his title, because he is bound by the warranty to render other lands to the value of those which shall be evicted. Sect. Sect. 21. Also it seems to be agreed, that he who hath an equitable interest in lands or goods, or even a chose in action, may lawfully maintain another in an action relating thereto; and (a) 3-4 H. 6.30. therefore it seemeth to be clear, that a man may lawfully maintain (a) those who are infeoffed of lands in trust for him, in an action concerning those lands, and that if he sell them to another, the vendee shall have the same privilege. 15 H. 7. 2. 2 E. 4. 2. B. Main. 19. 30. * (b) Noy, 100. Moor, 620. See 39 H. 6. 19. 6. 20. F. Main. 14. (c) 34 H. 6. 30. 15 H. 7. Noy, 52. C. Eliz. 552. 1 Sid. 21. B. Main. 9. (d) 18 E. 2. 4. B. Main. 41. Hob. 92. 2 R. Abr. 118. Noy, 99. Moor, 562.788. 1 Roll. 57. Sect. 22. Also it hath been (b) resolved, that where A. was bound as a surety for B. and B. thereupon made a deed of gift of certain sheep to A. in order to save him harmless from the said bond, with an implied trust that the sheep should be returned to B. if A. should not be damnified, and afterwards an action was brought against A. for the taking of sheep, B. might justify the maintaining of him in respect of the said trust. Sect. 23. Also it seemeth to be (c) certain that the assignee of a bond, or other chose in action, being made over to him for good consideration, in satisfaction of a precedent debt due bonâ fide to him, and not merely in consideration of the intended maintenance, may either maintain the obligee in an action brought by him for the debt, or commence an original action in his name, for he hath an equitable interest in the debt. Sect. 24. Also it seemeth to be (d) agreed, that wherever any claim a common interest in the same thing, as in a way, persons churchyard, or common, &c. by the same title, they may maintain one another in a suit relating to the same. Sect. 25. It is said, that he who is (c) bail for another, may (e) 34 H. 6. 26. take care to have his appearance recorded, but that he ought not to intermeddle any farther. 14 H. 6. 6. 18 Ed. 4. 12. (f) 20 H. 6. 6 Ed. 4, 5. 14 H. 7. 2. (g) 6 Ed. 4, 5. F. Main. 16 (h) 21 H. 6. 15. 11 H. 6. 41. 42. 19 Ed. 4. 32. (i) 19 Ed. 4. 5. As to the SECOND of the said particulars, viz. How far some acts of this kind are justifiable in respect of kindred or affinity. Sect. 26. It seems to be agreed, that whoever is in any way of kin or affinity to either of the parties, so long as the same (f) continues, or but related to him by being his (g) godfather, may lawfully (h) stand by him at the bar, and counsel and assist him, and also pray another to be of counsel to him; but that he cannot justify the laying out of any of his own (i) money in the cause, unless he be either (k) father, or son, or heir apparent to the party, or the husband of such an heiress. 2 Inst. 564. (k) 21 H. 6. 16. 2 Inst. 564. Vide sup. s. 14. As to the THIRD of the said particulars, viz. How far some acts of maintenance are justifiable in respect of other relations, I shall consider, 1. How far a lord may maintain his tenant. 2. How far a tenant may maintain his lord. 5. How far one neighbour may maintain another. As to the FIRST POINT, viz. How far a landlord may maintain his tenant. Sect. 27. It seems certain, that not only the (a) lord, but also the cestuy que use of a seignory, may come with the tenant to a trial in an assize against him, and stand by him and assist him, and also pray the sheriff to return an indifferent jury. (@) 11 H. 6. 39. b. 40. B. Main. 50. Sect. 28. Also it seemeth, that the (b) lord of a town, in an (b) 18 Ed. 4. 2. action brought against the inhabitants, wherein a right to a com- B. Main. 50. mon burying-place, claimed by them, is brought into question, may maintain them in the defence of their right by shewing authentic evidence thereof to the jury. Sect. 29. And in some (c) books it is said generally, that the (c) 9 H. 6. 64. lord may maintain his tenant, without saying how far he may do B. Main. 3. it; and I do not find it any where expressly holden, that the lord may justify laying out his own money in defence of his tenant's title: but it seemeth the better opinion, that he may as well justify it as any other of the abovementioned acts of (d) mainte- (d) Co. Lit. 65. nance; for the lord, by accepting a man for his tenant, seemeth 11 H. 6. 42. to take him under his immediate (e) protection; and inasmuch (e) Co. Lit. as the lands were originally derived from the lord, and he hath 101. 384, the continual benefit of the services due from them, the law, in 2 R. Ab. 117. many cases of (f) common right, obliges him to warrant them (f) F. Main. unto his tenant, and where it doth not oblige him, surely it will 25. at least permit him to do it: but it seems clear, that he cannot maintain him in respect of any lands not holden of him. As to the SECOND POINT, viz. How far a tenant may maintain his lord. Sect. 30. It is said, that he may justify (g) coming with his (g) 11 H. 6. 42. lord, and standing with him at a trial; but I cannot find any 2 R. Abr. 116. thing more relating to this matter in any of the books. As to the THIRD POINT, viz. How far a master may maintain his servant. Sect. 31. It is said that the master may go along with his (h) (h) Het. 79. servant, or with his (i) chaplain, being retained to live in his (i) 19 H. 6. 30. house with him, in order to (k) retain counsel, and that he may 12. b. 13. (k) 28 H. 6. pray one to be of counsel for him, and also that he may go with 34 H. 6. 25, him to the () trial, and stand with him and aid him while the 26. cause is tried, but ought not to speak in the court in favour of B. Main. 6. 14. his cause. F. Main. 20. () 19 H. 6.30. 11 H. 6. 42. 2 R. Abr. 116. Het. 79. Sect. 32. Also it is said, that if my servant be arrested in an (m) 21 H. 7.40. action of (m) debt, I may assist him with money in order to keep Moor, 814. him out of prison, that I may have the benefit of his service. 19 Ed. 4. 3. 2 R. Abr. 116. Het. 79. Sect. 33. But it is said, that the master, in real actions, cannot justify laying out money for his servant, unless he hath some of B. Main. 24. $1 H. 6.9. B. Main. 44. 52. (a) 39 H.6.5,6. 54. 11 H. 6. 10, 11, 19 E. 4. 3. 12 Edw. 4. 14. of his wages in his hand; which, if the servant be willing, the master may safely lay out on his behalf. As to the FOURTH POINT, viz. How far a servant may maintain his master. Sect. 34. It seemeth clear, that a person generally retained by another as his servant to do all manner of services, and not for a (a) particular occasion only, may justify (b) riding about to speed his business, and going to (c) counsel in his behalf, and shewing his evidences to the counsel or to the jury, and (d) standing by him at a trial between him and another; but it is certain that he cannot lawfully lay out any of his own (e) money to assist the master in his suit. As to the FIFTH POINT, viz. How far one neighbour may assist another. Sect. 35. It seems clear, that a man may lawfully go with (f) 19 E. 4. 3. his (f) neighbour to inquire for a person learned in law, but that he ought not to give him any money towards carrying on his suit. 2 R. Ab. 118. (g) 21 H. 6. 16. 9 H. 6. 64. 22 H. 6. 64. 22 H. 6. 55. B. Main. 14. As to the FOURTH INSTANCE, wherein some acts of this kind are justifiable, viz. That relating to charity. Sect. 26. It seems to be (g) agreed, that any one may lawfully give money to a poor man to enable him to carry on his suit. Sect. 27. Also it hath been adjudged, that any one may safely (h) 19 E. 4. 3. go with a (h) foreigner who cannot speak English to a counsellor and inform him of his case. 34 H. 6. 25. 15 H. 7. 2. B. Main. 7. (i) 1 H. 6. 10, 11. 2 R. Abr. 116. 2 Inst. 564. (k) F. Main. 8. 22 H. 6. 6. ( 13 H. 4. 16. Keilw. 50. Hob. 117. 2 Inst. 564. As to the FIFTH INSTANCE, wherein some acts of this kind may be justified, viz. That relating to the profession of the law. I shall consider, 1. How far they are justifiable in a counsellor. 2. How far in an attorney. As to the FIRST POINT, viz. How far acts of maintenance are justifiable in a counsel. Sect. 28. There is no doubt but that a (i) counsellor, having received his fee, may lawfully set forth his client's cause to the best advantage; but it is certain, that he can no more justify (k) giving him money to maintain his suit, or threatening a juror, than any other person. As to the SECOND POINT, viz. How far acts of maintenance are justifiable in an attorney. Sect. 29. There is no doubt but that an attorney may (7) lawfully prosecute or defend an action in the court wherein he is an allowed attorney, in behalf of any one by whom he shall be spe 2 R. Abr. 116. cially retained, and that he may assist his client, by laying out his own money for him to be repaid again, and also may main F. Main. 21. |