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party while his cause is tried, this is maintenance. Hawk. P. C. b. 1, c. 83, s. 5, 6, 7. It may be doubted, however, whether, at the present day, [*613] some of these acts would be held to amount to an indictable offence, unless they were plainly accompanied by a corrupt motive. A bare promise to maintain another is not in itself maintenance, unless it be so in respect of the public manner in which, or the power of the person by So the mere giving of whom it is made. Hawk. P. C. b. 1, c. 83, s. 8. friendly advice, as what action it will be proper to bring to recover a cerIbid. s. 11. tain debt, will not amount to maintenance.

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Maintenance-justifiable—in respect of interest.] Those who have a certain interest, or even bare contingent interest, in the matter in variance, may maintain another in an action concerning such matter; as in the case of landlord and tenant, trustee and cestui que trust. Hawk. So where A. at the request of B. deP. C. b. 1, c. 83, s. 19, 20, 21. fended an action brought for the recovery of a sum of money, in which B. claimed an interest, upon B. undertaking to indemnify him from the consequences of such action, this was held not to be maintenance. Williamson v. Henley, 6 Bingh. 299 (a). So wherever persons claim a common interest in the same thing, as in a way, common, &c., by the same title, they may maintain one another in a suit relating to the same. Hawk. P. C. b. 1, c. 83, s. 24.

Maintenance—justifiable-master and servant.] A master may go with his servant to retain counsel, or to the trial and stand by him, but ought not to speak for him; or if arrested may assist him with money. Hawk. P. C. b. 1, c. 83, s. 31, 32. So a servant may go to counsel on behalf of his master, or show his evidences, but cannot lawfully lay out his Ibid. s. 34. own money to assist his master.

Maintenance-justifiable-affinity.] Whoever is in any way of kin or affinity to either of the parties, may stand by him at the bar, and counsel or assist him; but unless he be either father or son, or heir apparent, or the husband of such an heiress, he cannot justify laying out money in his Hawk. P. C. b. 1, c. 83, s. 26.

cause.

Maintenance-justifiable-poverty.] Any one may lawfully give money to a poor man, to enable him to carry on his suit (1). Hawk. P. C. b. 1, c. 83, s. 36.

Maintenance-justifiable—counsel and attornies.] Another exception to the general rule with regard to maintenance is the case of counsel and any deceitattornies. But no counsel or attorney can justify the using of ful practice in the maintenance of a client's cause, and they are liable to be severely punished for any misdemeanors of this kind. Hawk. P. C. b. 1, c. 83, s. 31. And by stat. West. 1, c. 29, if any serjeant, pleader, or other, do any manner of deceit or collusion in the King's court, or consent to it, in deceit of the court, or to beguile the court or the party, he shall be imprisoned for a year and a day. Procuring an attorney to ap

(1) Perine v. Dunn, 3 Johns. Ch. Rep. 508. State v. Chitty, 1 Bailey, 401.
(a) Eng. Com. L. Rep. xix. 87.

pear for a man, and to confess judgment without a warrant, has been held within this statute. Hawk. P. C. b. 1, c. 83, s. 36. So bring ing a præcipe against a poor man, knowing he has nothing in the land, on purpose to get the possession from the true tenant. Id. s. 35.

Champerty.] Champerty is a species of maintenance, accompanied by a bargain to divide the matter sued for between the parties, whereupon the champertor is to carry on the suit at his own expense. 4 Bl. Com. 135; 1 Russell, 179. Champerty may be in personal as well as in real actions; Hawk. P. C. b. 1, c. 84, s. 5; and to maintain a defendant may be champerty. Ibid. s. 8.

By 31 Eliz. c. 5, the offence of champerty may be laid in any county, at the pleasure of the informer.

Various cases have occurred in modern times, in which the doctrine of champerty has come in question. Where a bill was filed to set aside an agreement made by a seaman, for the sale of his chance of prize-money, Sir William Grant, M. R. expressed an opinion that the agreement was void from the beginning, as amounting to champerty, viz. the unlawful maintenance of a suit, in consideration of a bargain for a part of the thing, or some profit out of it. Stevens v. Bagwell, 15 Ves. 139. So in a late case it was held, that an agreement to communicate such information as should enable a party to recover a sum of money by action, and to exert influence for procuring evidence to substantiate the claim, upon condition of receiving a portion of the sum recovered, was illegal. Stanley v. Jones, 7 Bingh. 369 (a); 5 Moore and P. 103; see Potts v. Sparrow, 6 C. and P. 749 (b).

Embracery.] Embracery, likewise, is another species of maintenance. Any attempt to corrupt, or influence, or instruct a jury, or to incline them to be more favorable to one side than 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 an act of embracery; whether the jurors give any verdict or not, and whether the verdict given be true or false (1). Hawk. P. C. b. 1, c. 85, s. 1. The giving money to a juror after the verdict, without any preceding contract, is an offence savoring of embracery; but it is otherwise of the payment of a juror's travelling expenses. Id. s. 3. Embracery is punishable by fine and imprisonment. Id. s. 7.

Analogous to the offence of embracery is that of persuading, or endeavoring to persuade, a witness from attending to give evidence, an offence punishable with fine and imprisonment. It is not material that the attempt has been unsuccessful. Hawk. P. C. b. 1, c. 21, s. 15; Lawley's case, 2 Str. 904; 1 Russell, 184.

(1) Gibbs v. Dewey, 5 Cowen, 503.

(a) Eng. Com. L. Rep. xx. 165. (b) Id. xxv. 631.

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The law relating to malicious injuries to property, was formerly comprised in a great variety of statutes, which are now repealed by the 7 & 8 Geo. 4, c. 27, and new provisions substituted in their place, by the 7 & 8 Geo. 4, c. 30. In the latter act, certain general clauses are contained, which being applicable to the greater part of the offences after-mentioned, may be most conveniently inserted in this place.

GENERAL CLAUSES.

Proof of malice against owner.] By the 7 & 8 Geo. 4, c. 30, s. 25, it is enacted, "that every punishment and forfeiture by this act imposed [*616] on any person maliciously committing any offence, *whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property, in respect of which it shall be committed, or otherwise."

Apprehension of offenders.] By s. 28, for the more effectual apprehension of all offenders against this act, it is enacted, "that any person found committing any offence against this act, whether the same be punishable upon indictment or upon summary conviction, may be immediately apprehended, without a warrant, by any peace officer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighboring justice of the peace, to be dealt with according to law."

Accessaries.] By the 26th section, " in the case of every felony punishable under this act, every principal in the second degree, and every accessary before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this act punishable; and every accessary after the fact to any felony punishable under this act shall, on conviction, be liable to be imprisoned for any term not exceeding two years; and every person who shall aid, abet, counsel or procure the commission of any misdemeanor punishable under this act, shall be liable to be indicted and punished as a principal offender.”

Punishment-hard labor.] By s. 27, "where any person shall be convicted of any indictable offence punishable under this act for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labor, as to the court in its discretion shall seem meet."

But now by the 7 Wm. 4 and 1 Vict. c. 90, s. 5, solitary confinement shall not exceed one month at a time, and not more than three months in any one year; see ante, p. 348.

WITH REGARD TO MINES.

Proof of drowning a mine, or filling up a shaft with intent to destroy the mine.] The 39 & 40 Geo. 3, c. 77, relating to this subject; being repealed, the offence is now provided against by the 7 & 8 Geo. 4, c. 30, the sixth section of which enacts, "that if any person shall unlawfully and maliciously cause any water to be conveyed into any mine, or into any subterraneous passage communicating therewith, with intent thereby to destroy or damage such *mine, or to hinder or delay the [ *617 ] working thereof, or shall, with the like intent, unlawfully and maliciously pull down, fill up, or obstruct any airway, waterway, drain, pit, level, or shaft of or belonging to any mine, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit,) in addition to such imprisonment: Provided always, that this provision shall not extend to any damage committed under ground by any owner of any adjoining mine in working the same, or by any person duly employed in such working."

The prosecutor must prove: 1. the act of causing the water to be conveyed into the mine, &c. for which purpose it will probably be necessary to resort to circumstantial evidence; 2. that the act was done unlawfully and maliciously; 3. the intent to destroy or damage the mine, or hinder the working; and 4, that the mine is in the possession of the party named. Where A. and B. were the owners of adjoining collieries, and A., asserting that a certain airway belonged to him, directed his workmen to stop it up, and they, acting bona fide, and believing that A. had a right to give such an order, did so; Lord Abinger, C. B., held, they were not

guilty of felony under the above section. James's case, 8 C. and P. 131 (a). But if such workmen knew that the stopping up of the airway was a malicious act of their master, such workmen would be guilty of felony. Ibid.

The setting fire to mines is provided against by the 7 Wm. 4 and 1 Vict. c. 89, s. 9; see ante, p. 254.

Engines, &c. used in mines.] By the 7 & 8 Geo. 4, c. 30, s. 7, "if any person shall unlawfully and maliciously pull down or destroy, or damage with intent to destroy or to render useless, any steam engine or other engine for sinking, draining, or working any mine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, wagon-way, or trunk, for conveying minerals, from any mine, whether such engine, staith, building, erection, bridge, wagon-way, or trunk, be completed or in an unfinished state, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to any of the punishments which the court may award, as hereinbefore last mentioned." (Section 6, ante, p. 616.)

WITH REGARD TO BREAKING DOWN, &C., SEA BANKS, LOCKS, WORKS ON RIVERS, CANALS, AND FISH PONDS.

The former statutes relating to these offences were the 6 Geo. 2, c. 37;. [*618] the 8 Geo. 2, c. 20; the 4 Geo. 4, c. 46; and the 1 Geo. 4, *c. 115; but these statutes are now repealed, and their provisions consolidated in the 7 & 8 Geo. 4, c. 30.

Proof of breaking down sea banks, banks of canals, marshes, &c.] By the 7 and 8 Geo. 4, c. 30, s. 12, "if any person shall unlawfully and maliciously break down or cut down any sea bank or sea wall, or the bank or wall of any river, canal, or marsh, whereby any lands shall be overflowed or damaged, or shall be in danger of being so, or shall unlawfully and maliciously throw down, level, or otherwise destroy any lock, sluice, floodgate, or other work on any navigable river or canal, every such of fender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years; and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment."

With regard to breaking down fish-ponds, &c.] Breaking down the mounds of fish-pounds was formerly punishable by the 5 Eliz. c. 21, and the 9 Geo. 1, c. 22. Those statutes are repealed by the 7 and 8 Geo. 4, c. 30, the 15th section of which statute enacts, "that if any person shall unlawfully and maliciously break down or otherwise destroy the dam of any fish-pond, or of any water which shall be private property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause

(a) Eng. Com. L. Rep. xxxiv. 326.

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