MAINTENANCE, &c.

'Maintenance is commonly taken in an ill sense, and, in general, seemeth to signify an unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hindrance of common right.' Hawk. P. C. 1, 83, 1. A man can assist another in his pretensions to certain lands by taking or holding' them for him by force or subtlety,' or may stir up quarrels and suits in . . . matters wherein he is in no way concerned,' or may 'officiously intermeddle in a suit depending which no way belongs to him, by assisting either party with money or otherwise. Ib. ss. 2, 3. It is an indictable offence against public justice,' punishable at common law with fine and imprisonment, ib. s. 38, and is forbidden by various statutes. 1 E. 3, st. 2, c. 14, 1326-7; 1 R. 2, c. 4, 1377, both confirmed 7 R. 2, 15, 1383; 32 H. 8, 9, 3, 1540, amended 1-2 G. 5, 6, 17. These Acts, however, are only declaratory of the common law, with additional penalties. Pechell v. Watson, 8 M. & W., at 700, 1841.

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According to the old authorities, whoever assists another with money to carry on his cause, as by retaining one to be of counsel for him, or otherwise bears him out in the whole or any part of his suit, or by his friendship or interest saves him that expense which he might be otherwise put to, or opens the evidence to the jury, or gives evidence 'officiously' without being called on to do so, or speaks in another's cause as one of counsel with the party,' or retains an attorney for him, or being of great power and interest, says publicly that he will spend twenty pounds on one side or to labour the jury, whether in truth he spend one penny or not,' or stand by the party at the bar while his cause is tried-this is maintenance, for it discourages the other party from going on in his cause and intimidates juries. Hawk. P. C. 1, 83, 4, 5, 6, 7. It may be doubted, however, whether, at the present day, some of these acts would be held to be indictable, unless they were plainly accompanied with a corrupt motive. A bare promise to maintain another is not in itself maintenance, unless it be either in respect of the public manner in which, or the power of the person by whom it is made.' Ib. s. 8. So the mere giving of 'friendly advice what action is proper to bring for the recovery of a certain debt,' is not maintenance. Ib. s. 11. The result of the cases was thus summed up: 'to bind oneself after the commencement of a suit to pay the expenses of another in that suit, more especially if that other be a person himself of no means, and the suit be one which he cannot bring, is still, as it always was, maintenance. . It is said, however, that this general statement requires two qualifications: first, that the acts of the maintainer must be immoral, and that the maintainer must have been actuated by a bad motive; next, that if he has, or believes himself to have, a common interest with the plaintiff in the result of the suit, his acts, which would otherwise be maintenance, cease to be so': per L. Coleridge C.J. in Bradlaugh v._Newdegate, 11 Q. B. D. 9; 52 L. J. Q. B. 454, 1883.

In order to justify maintenance of a suit there must either be a common interest recognised by the law in a matter at issue or the case must fall within one of the specific exceptions established by the authorities. Alabaster v. Harness, 1894, 2 Q. B. 297; 1895, 1 Q. B. 339; 64 L. J. Q. B. 76: C. A.

Interest] Those who have a certain interest, or an equitable, even a bare contingent interest, in the matter in variance, may maintain another in an action concerning it; as in the case of landlord and tenant, trustee and cestui que trust. Hawk. P. C. 1, 83, 17-21. So where A. at the request of B. defended an action for money in which B. claimed an interest, on B.'s indemnifying him from the consequences of such action, this was held not to be maintenance. Williamson v. Henley, 6 Bing. 299, 1829. So 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 relating to the same.' Hawk. P. C. 1, 83, 24; Bradlaugh v. Newdegate, above.

Master and servant, and vice versâ] 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 in the court), or if arrested may assist him with money. Hawk. ib., ss. 31, 32. So a servant mutatis mutandis, but he cannot lawfully lay out his own money to assist his master. Ib. s. 34.

Relatives, &c.] 'whoever is in any way of kin or affinity to either of the parties. . . may lawfully stand by him at the bar, and counsel and assist him'; but unless he be either father or son, or heir-apparent, or the husband of an heiress, i.e. of a party, he cannot justify laying out his own money in the cause. Ib. s. 26.

Poor persons] 'Any one may lawfully give money to a poor man to enable him to carry on his suit.' Ib. s. 36; Harris v. Briscoe, 17 Q. B. D. 504, 1886.

Counsel and attorneys] Counsel can no more justify giving' a client money to maintain his suit' than any one else, but an attorney may lay out his money for his client, to be repaid again. But no counsel or attorney can justify the using any deceitful practice in the maintenance of a client's cause, and they are liable to be severely punished for all misdemeanours of this kind.' Hawk. P. C. 1, 83, 38, 39, 41. (These references assume a different professional system from the present one: e.g. in s. 40, solicitors are distinguished from attornies.) And by 3 E. 1, Stat. West. 1, c. 29, 1275, if any serjeant, pleader, or other, do any manner of disceit or collusion in the king's court, or consent unto it, in disceit of the court, or to beguile the court or the party, and thereof be attainted, he shall be imprisoned for a year and a day, and from thenceforth shall not be heard to plead in that court for any man.' Procuring an attorney to appear for a man, and to confess judgment without a warrant, has been held within this statute. Ib. s. 46. So bringing 'a præcipe [a writ] against a poor man, knowing that he had nothing in the land, on purpose to get possession from the true tenant.' Ib. s. 45.

Champerty from campi partitio division of the soil is a species of maintenance .. being a bargain with a plaintiff or defendant 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.' 4 Bl. Com. 135. To maintain (not only a plaintiff but) a defendant may be champerty. Hawk. P. C. 1, 84, 8.

By 31 Eliz. 5, 4, rpd., the offence of champerty may be laid in any county at the pleasure of the informer.

Where a bill was filed to set aside an agreement with navy agents made by the legatees of a seaman, for the sale of their chance of getting prize-money in a suit, Sir W. 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 a thing, or some profit out of it. Stevens v. Bagwell, 15 Ves. 139, 1808. So it has been held, that an agreement to communicate such information as should enable a person to recover a sum of money by action, and to exert influence for procuring evidence to substantiate the claim, on condition of receiving some of the money recovered, was illegal. Stanley v. Jones, 7 Bingh. 369, 1831; 5 Moore & P. 193, 1831; see Potts v. Sparrow, 6 C. & P. 749, 1834, and Bradlaugh v. Newdegate, above.

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Embracery likewise, is another species of maintenance. Any attempt whatsoever to corrupt or influence, or instruct a jury, or 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. . . give any verdict or not, or whether the verdict given be true or false.' Hawk. P. C. 1, 85, 1. Giving money to a juror after the verdict, without any preceding contract, is an offence savouring of embracery; but it is otherwise of the payment of a juror's reasonable travelling expenses which may fairly be expected by them from either side that shall prevail.' Ib. s. 3: again referring to a system now obsolete. Embracery is punishable on indictment like any other maintenance by fine and imprisonment.

Ib. s. 7.

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In Higgins, 1801, a recent' information against Young was mentioned (at 14 and 16) 'for attempting to influence a juryman in giving his verdict' by bribery.

Indictment] The names of the jurors to be influenced, &c. must be set out: it is not enough to allege embracery of a jury—otherwise the indictment will be quashed. Baker, 113 Cent. Crim. Ct. Sess. Pap. 374, 1891. Whether the means by which they were to be influenced, &c. must be set out was not decided. On a proper indictment there was a conviction. Ib. 589.

'MAKING A MARKET.'

See Conspiracy and Trade Offences.

MALICE,

though not the name of a crime, is a legal ingredient of many crimes, but cannot be satisfactorily expressed in a formula covering all of them. That seems to be the net result of innumerable judgments, dicta and texts. Consequently the meaning of the term in specific crimes is best sought under the head of each (and conveniently in the Index, where see also Mens rea).

MALICIOUS INJURY TO

I. PERSON,

See under specific titles, e.g. Wounding.

II. PROPERTY.

By 24-5 V. 97, 51, as amended by 4-5 G. 5, 58, 14 (2), below, sched. 4, and S. L. R. Acts: Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is hereinbefore provided, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour; and in case any such offence shall be committed between the hours of nine of the clock in the evening and six of the clock in the next morning shall be liable to be kept in penal servitude.' 'Hereinbefore': see ss. 1-50 in Table of Statutes.

Statutes] Where the act must be done unlawfully and maliciously,' it must be done 'wilfully' by an intentional act. A man who had been fighting in a crowd threw a stone which broke a window, but he threw it, the jury found, intending to strike the opponents he had been fighting with, or one or more of them with it, but not to break the window: held not guilty. If the jury had found that he was aware that the window was where it was, and that he was likely to break it and was reckless whether he broke it or not, it might have been different. Pembliton, L. R. 2 C. C. R. 119; 43 L. J. M. C. 91; 12 Cox C. C. 607, 1874: indictment under s. 51; the jury negatived any intention-actual or constructive to injure property. Had it been found that he was reckless of the consequences of his act and might reasonably have expected that particular one, that would, it seems from the judgments, have been upheld.

By s. 14 (2) of 4-5 G. 5, 58: 'So much of s. 51 of the Malicious Damage Act, 1861, as limits the cases which may be dealt with under that section to cases where the damage injury or spoil exceeds five pounds shall be repealed, but a court of summary jurisdiction shall not commit any person for trial for an offence under that section unless it is of opinion that the damage injury or spoil exceeds five pounds. By sub-ss. (1) and (3) of this s., if in the opinion of the court of summary jurisdiction the amount' of the damage exceeds five pounds, but not twenty, it may or may not commit for trial; if it exceeds twenty, it must.

'Provided that this provision [sub-s. (1)] shall not apply where the alleged offender acted under a fair and reasonable supposition that he had a right to do the act complained of'; in which case the summary jurisdiction is totally ousted, but the proviso does not touch the setting up of such a plea (in substance, one of self-defence) at the trial, when

the usual rule of excess will apply. See Clemens, below, and under Mines.

Compensation] to a reasonable' amount to the party aggrieved ' may be imposed as part of the sentence by any court.

'The amount'] When this had to exceed 51. the C. C. R. refused to consider the separate values of a number of articles wantonly cut, &c., and only looked at the total amount: Thoman, 12 Cox C. C. 54, 1871. This is to be reckoned without deducting any salvage value: M. Hewitt, 7 Cr. A. R. 219; 76 J. P. 360; 28 T. L. R. 378, 1912. If defendants act in concert, the total amount may be charged against them jointly: Joachim, 7 Cr. A. R. 222; 28 T. L. R. 380, 1912.

Even before s. 14 expert evidence of the amount was not required: Beckett, 8 Cr. A. R. 204; 29 T. L. R. 332, 1913; but since, the opinion of the court' is the statutory criterion.

The three following cases are on rpd. s. 52, which, like the first passage, rpd., in s. 51, is replaced by s. 14, above. An incorporeal right, such as that to 'herbage,' is not real or personal property,' which applies only to tangible property. Laws v. Eltringham, 8 Q. B. D. 283; 51 L. J. M. C. 13, 1881. There must be proof of actual damage to the realty itself; mere damage to uncultivated roots or plants growing on the realty, e.g. mushrooms, is insufficient. Gardner v. Mansbridge, 19 Q. B. D. 217, 1887. But where damage to the grass to the value of 6d. had been done by a trespasser, the conviction was upheld. Gayford v. Chowler, 1898, 1 Q. B. 316.

The jury, if they are of opinion that the defendants did more damage than was reasonably necessary to assert such right, must convict the defendants of malicious damage. Clemens, &c., 1898, 1 Q. B. 556; 19 Cox C. C. 18: C. C. R.

Wilfully or maliciously'] in rpd. s. 52 and s. 14 (1) is not the same as unlawfully and maliciously' in s. 51, &c. On this Roper v. Knott, 1898, 1 Q. B. 868; 67 L. J. Q. B. 574; 19 Cox C. C. 69; 62 J. P. 375, turned. There a milkman adulterated his master's milk with water to his own profit and without injury to the master. Seven judges held that the milk was wilfully, if not maliciously, damaged, and ordered a conviction; there was 'damage to the property,' though not to the owner. Cf. Pembliton, above; Faulkner, 1877; and Martin,

1881.

Fair and reasonable supposition] If the claim is not reasonable, e.g. has no legal existence, there may be a conviction: Brooks v. Hamlyn, 19 Cox C. C. 231, 1899: case stated; and where the justices had admitted such a claim the case was sent back to them to hear: Croydon R. D. C. v. Crowley, 22 Cox C. C. 22, 1909: Mitcham Common golf: case stated.

Triable at Q. S.

III. TO BOTH OR TO ONE THROUGH THE OTHER.

The important cases will be found under Manslaughter or Murder.