try, except only as is hereinafter excepted, shall be deemed and taken to be offences committed against the said several Acts respectively, and shall be dealt with and punished accordingly: provided nevertheless, that nothing herein contained shall repeal or alter any of the provisions of the said Act.

Sec. 2. "All persons holden in servitude as pledges for debt, and commonly called pawns,' or by whatsoever other name they may be called or known, shall for the purposes of the said consolidated Slave Trade Act," and the 3 & 4 Will. 4, c. 73, "and of this present Act, be deemed and construed to be slaves or persons intended to be dealt with as slaves."

Sec. 3. "All offences against the consolidated Slave Trade Act or against this present Act, which shall be committed by British subjects out of this United Kingdom, whether within the dominions of the British Crown or in any foreign country, or by foreigners *within the British dominions, except in places *251] where the British admiral has jurisdiction, may be taken cognizance of, inquired into, tried, and determined according to the provisions of" the 9 Geo. 4, c. 31.(s)

Sec. 5. "In all the cases in which the holding or taking of slaves shall not be prohibited by this or any other Act of Parliament, it shall be lawful to sell or transfer such slaves, anything in this or any other Act contained notwithstanding."

Sec. 6. "Nothing in this Act contained shall be taken to subject to any forfeiture, punishment, or penalty any person for transferring or receiving any share in any joint-stock company established before the passing of this Act in respect of any slave or slaves in the possession of such company before such time, or for selling any slave or slaves which were lawfully in his possession at the time of passing this Act, or which such person shall or may have become possessed of or entitled unto bona fide prior to such sale, by inheritance, devise, bequest, marriage, or otherwise by operation of law."

Sec. 4 provides for issuing a mandamus for the examination of witnesses, and the receiving other proofs concerning matters charged in any indictment or information in the Queen's Bench for offences against the Acts committed in any British colony, settlement, plantation, or territory.

There is nothing in the statutes to prohibit a contract by a British subject for the sale of slaves lawfully held by him in a foreign country, where the possession and sale of slaves is legal. Where therefore the defendants, British subjects, resident and domiciled in Great Britain, being possessed of certain slaves in the Brazils, where the purchase and holding of slaves is lawful, contracted with the plaintiff, a Brazilian subject, domiciled in the Brazils, to sell them to him, to be used and employed there, and some of the slaves had been purchased by the defendants in the Brazils after the passing of the 5 Geo. 4, c. 113, but before the 6 & 7 Vict. c. 98, for the purpose of being employed, and they were employed, in certain mines there, of which the defendants were the proprietors; and the rest of the slaves were their offspring, and were in the possession of the defendants before the passing of the latter Act; it was held that the contract was valid.(t)

*252]

*CHAPTER THE NINETEENTH.

OF FORESTALLING, REGRATING, AND INGROSSING, AND OF MONOPOLIES.

EVERY practice or device by act, conspiracy, words, or news, to enhance the price of victuals or other merchandize, has been held to be unlawful; as being

(s) The 9 Geo. 4, c. 31 is repealed; but there is no doubt that, for the purposes of this section, it would be held to be kept alive. See Reg. v. Merionethshire, 6 Q. B. 343 (51 E. C. L. R.); Reg. v. Breconshire, 15 Q. B. 813 (69 E. C. L. R.).

(t) Santos v. Illidge, 8 C. B. (N. S.) 861 (98 E. C. L. R.), in error: reversing the judgment of the Common Pleas in 6 C. B. (N. S.) 841 (95 E. C. L. R.).

prejudicial to trade and commerce, and injurious to the public in general.(a) Practices of this kind came under the notion of forestalling; which anciently comprehended, in its signification, regrating and ingrossing, and all other offences of the like nature.(b) Spreading false rumors, buying things in the market before the accustomed hour, or buying and selling again the same thing in the same market, are offences of this kind.(c) Also if a person within the realm bought any merchandize in gross, and sold the same again in gross, it was considered an offence of this nature, on the ground that the price must be thereby enhanced, as each person through whose hands it passed would endeavor to make his profit of it.(d) So the bare ingrossing of a whole commodity, with an intent to sell it at an unreasonable price, was an offence at the common law; for if such practices were allowed, a rich man might ingross into his hands a whole commodity, and then sell it at what price he should think fit.(e)

The offences of forestalling, regrating, and ingrossing were for a considerable period prohibited by statutes; but the beneficial tendency of such statutes was doubted; and at length by the 12 Geo. 3, c. 71, they were repealed, as being detrimental to the supply of the laboring and manufacturing poor of the kingdom. But forestalling, regrating, and ingrossing, continued offences at common law until the 7 & 8 Vict. c. 24, s. 1, which enacts that "the several offences of badgering, engrossing, forestalling, and regrating be utterly taken away and abolished, and that no information, indictment, suit, or prosecution, shall lie either at common law or by virtue of any statute, or be commenced or prosecuted against any person for or by reason of any of the said offences or supposed offences."

Sec. 4. "Nothing in this Act contained shall be construed to apply to the offence of knowingly and fraudulently spreading, or conspiring to spread, any false rumor, with intent to enhance or decry the price of any goods or merchandize, or to the offence of preventing, or endeavoring to prevent, by force or threats, any [*253 goods, wares, or merchandize being brought to any fair or market, but that every such offence may be inquired of, tried, and punished as if this Act had not been made."

The attempt by false reports to enhance or abate the price of our native commodities is punishable by fine and ransom at common law. (ƒ) And where certain persons come 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.(g) And there can be no doubt that the offences excepted by sec. 4 of the 7 & 8 Vict. c. 24 are punishable like other common law misdemeanors.(h)

Monopolies are much the same offence in other branches of trade 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.(i) 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 (k) 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 prose

(a) 3 Inst. 196; Bac. Abr. tit. Forestalling (A).

(b) 3 Inst. 195; Bac. Abr. tit. Forestalling (A).

(e) 1 Hawk. P. C. c. 80, s. 1.

(d) 3 Inst. 196; Bac. Abr. tit. Forestalling (A); 1 Hawk. P. C. c. 80, s. 3. But it was held that any merchant, whether subject or foreigner, bringing victuals or any other merchandize into the realm, may sell it in gross: 3 Inst. 196.

(e) 1 Hawk. P. C. c. 80, s. 3; 3 Inst. 196.

(ƒ) 3 Inst. 196, referring to 23 Ed. 3, c. 6;

(g) 43 Ass. pl. 38; 3 Inst. 196.

(1) 4 Blac. Com. 158; 3 Inst. 181.

13 Rich. 2, c. 8, Inter leges Ethelstani, c. 12. (h) Ante, p. 252.

(k) Skin. 169.

cutions of this kind in former days.(7) And all grants of this kind, relating to any known trade, are void by the common law.(m)

But, notwithstanding their illegality, monopolies had been carried on 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.(n)

*254]

*CHAPTER THE TWENTIETH.

OF MAINTENANCE AND CHAMPERTY, AND OF BUYING AND SELLING PRETENDED TITLES.

1. MAINTENANCE seems to signify an unlawful taking in hand or 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 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. (b) 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 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 be as much guilty of maintenance for supporting

(7) 3 Inst. 181; 2 Inst. 47, 61; Bac. Abr. tit. Monopoly (A), note (b).

(m) 1 Hawk. P. C. c. 79, s. 1.

(n) Sec. 4. And see further upon the subject of monopolies, 1 Hawk. P. C. c. 79; Bac. Abr. tit. Monopoly.

(a) Co. Lit. 368 b.; 2 Inst. 208, 212, 213; 1 Hawk. P. C. c. 83, s. 1, 2. Bac. Abr. tit. Maintenance. This kind of maintenance is called in the books ruralis, in distinction to another sort carried on in courts of justice, and therefore called curialis. It is punishable at the King's suit by fine and imprisonment, whether the matter in dispute any way depended in plea or not; but is said not to be actionable.

(b) 1 Hawk. P. C. c. 83, s. 3; Bac. Abr. tit. Maintenance; 4 Blac. Com. 134. This kind of maintenance is called curialis. See ante, note (a).

(c) Co. Lit. 368; 1 Hawk. P. C. c. 83, s. 3. The abuse of legal proceedings by oppressive combinations to carry them into effect is observed by Mr. Hume to have speedily appeared upon the establishment of the laws in the time of Edward I. He says, "instead of their former associations for robbery and violence, men entered into formal combinations to support each other in law suits; and it was found requisite to check this iniquity by Act of Parliament:" 2 Hume 320, referring to the statute of conspirators.-Edw. I. (d) I Hawk. P. C. c. 83, s. 4, and the numerous authorities cited in the margin. (e) Bac. Abr. tit. Maintenance (A); 1 Hawk. P. C. c. 83, s. 12, where it is said, that if it plainly appear that the money was given merely with a design to assist in the prosecu

"A man is not less a maintainer, champerter, or conspirator, because the cause was just, if the motive were selfish or oppressive:" Judge Johnson, in State v. Chitty, 1 Bailey 379.

*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 (ƒ)

[*255

It has also been said, that he who by his friendship or interest saves a person that expense in his cause which he might otherwise be put to, or gives, or but endeavors to give, any other kind of assistance to a party in the management of his suit, is guilty of maintenance.(g) And 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 labor 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. () 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 kin[*256 dred 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

tion or defence of an intended suit, which afterwards is actually brought, surely it cannot but be as great a misdemeanor in the nature of the thing and equally criminal at common law as if the money were given after the commencement of the suit; though perhaps it may not in strictness come under the motion of maintenance.

(f) 1 Hawk. P. C. c. 83, s. 13; Bac. Abr. tit. Maintenance (A). Where a declaration alleged that the defendant unlawfully, maliciously, and without reasonable or probable cause, and without having any interest in the suit therein mentioned, instigated and stirred up a pauper to commence and prosecute an action against the plaintiff; by reason whereof the pauper did commence and prosecute such action, whereby the plaintiff was put to great trouble and vexation, and obliged to lay out a large sum in the defence of such action; the Court of Exchequer held that the declaration was good: Pechell v. Watson, 8 M. & W. 691. But where a declaration alleged that the defendant unlawfully and maliciously did procure, instigate, and stir up one Thomas to commence and prosecute an action against the plaintiff, wherein certain issues were joined as to which the plaintiff was acquitted; the Court of Queen's Bench held that no cause of action appeared, the declaration not showing maintenance (as the action appeared not to have been commenced when the defendant interfered), and not alleging want of reasonable and probable cause for the action: Flight v. Leman, 4 Q. B. 883 (45 E. C. L. R.). A declaration for maintenance need not charge the maintenance to have been committed against the form of the statute-it being a wrongful act at common law, and the statutes relating to maintenance being only declaratory of the common law with additional penalties. Nor need the declaration allege that the defendant was not interested in the action maintained; for if he was, that is matter to be pleaded by him: Pechell v. Watson, supra.

(g) Bro. tit. Maintenance, 7, 14, 17, &c.; 1 Hawk. P. C. c. 83, s. 5. But, quære, how far this would be acted upon at the present day; and see the judgment of Buller, J., in Master t. Miller, 4 T. R. 340, where he says, "It is curious, and not altogether useless, to see how the doctrine of maintenance has from time to time been received in Westminster Hall. At one time, not only he who laid out money to assist another in his cause, but he that by his friendship or interest saved him an expense that he would otherwise be put to, was held guilty of maintenance. Nay, if he officiously gave evidence, it was maintenance; so that he must have had a subpoena, or suppressed the truth. That such doctrine, repugnant to every honest feeling of the human heart, should be laid aside, must be expected.""

(h) 1 Hawk. P. C. c. 83, s. 7; Bac. Abr. tit. Maintenance (A).

(1) Hawk. P. C. c. 83, s. 8.

(k) Ibid. s. 9; Bac. Abr. tit. Maintenance (A).

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.() Also he who is bound to warrant lands may 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 a man's bail may take care to have his appearance recorded: but, as some say, they cannot safely intermeddle further.(n)

Where, on the trial of an action brought to recover the amount of an attorney's bill, in which there was a plea of maintenance, it appeared that Jesus College, Oxford, had given notice to set out tithes in kind to all the owners of old inclosures in the parish of Tredington, who had, as far as living memory went, paid certain sums of money in lieu of tithes for the old inclosures, and that at a meeting of the owners of such old inclosures, it was agreed by them that they should defend any suit or suits, which should be instituted by Jesus College, to enforce the payment of tithes, and that the expenses of such defence should be paid by the owners in proportion to their interests, as ascertained by the poor rate; the owners considering that if Jesus College should succeed in one suit as to any part of the old inclosures, that would invalidate the payments as to all; and Jesus College afterwards filed seven bills in the Exchequer, and commissions were issued for the examination of witnesses in each suit, and depositions taken in all the suits; but in one suit a greater number of depositions than in any other, and which related to there having been no payment of any tithe for the old inclosures, and there being a distinction in this respect, as far as living memory went, between the old and the new inclosures: and these depositions by consent had been used in all the suits; and nine issues having been directed to be tried, *and the jury having *257] retired to consider their verdict in the first, it was agreed that the verdicts in the other issues should be entered according to the finding of the jury in the first; but such jury was discharged without finding any verdict, and decrees were afterwards made, establishing some of the moduses and quashing others; it was held that the agreement to defend the suits was not maintenance; for although the payments were not the same per acre, and although the interest in each payment was separate, yet all the owners of the old inclosures had an interest in supporting the moduses over all the old inclosures, and, consequently, the agreement was not officiously entered into in order to defend the suits.(0)

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.(p)

(1) Bac. Abr. tit. Maintenance (B); 1 Hawk. P. C. c. 83, s. 14, 15, &c.

(m) Id. Ibid., and see the judgment of Buller, J., in Master v. Miller, 4 T. R. 340, et seq. (n) 1 Hawk. P. C. c. 83, s. 24, 25; Bac. Abr. tit. Maintenanec (B.) (0) Findon v. Parker, 11 M. & W. 675, and MSS. C. S. G. (p) Williamson v. Henley, 6 Bing. 299 (19 E. C. L. R.).