13. MAINTENANCE. --- $238. Provisions of the Statute. "If any person shall officiously intermeddle in any suit at common law or in chancery, that in nowise belongs to or concerns such person, by maintaining or assisting either party, with money or otherwise, to prosecute or defend such suit, with a view to promote litigation, he shall be deemed guilty of maintenance, and upon conviction thereof, shall be fined and punished as in cases of common barratry: Provided, that it shall not be considered maintenance for a man to maintain the suit of his kinsman or servant, or any poor person out of charity."" STATEMENT OF THE OFFENSE OF MAINTENANCE. (Commence as in form on page 112) that on, etc., at, etc., in the said county, C. D. did unlawfully and officially intermeddle in a certain suit then and there depending and undetermined in the circuit court of the said county of —, wherein one E. F. was plaintiff and one G. H. was defendant, in a plea of debt that then and there in nowise belonged to or concerned the said C. D., by then and there maintaining and assisting the said E. F., a party-plaintiff in the said suit, with money and otherwise, to then and there prosecute the said suit, with a view then and there to promote litigation," contrary to the form of the statute in such case made and provided3 (conclude as in form on page 112). $239. Evidence of Officiously Intermeddling, etc. 1. It must be shown that the defendant officiously intermeddled with a suit by maintaining or assisting, with money or otherwise, to prosecute or defend it. This may be done by retaining one to be counsel for a party to the suit, or otherwise paying the whole or a part of the expenses of the suit,5 or by furnishing R. S., 355, § 27; Underwood v. Riley, 19 Wis., 412; Baker v. Baker, 14 Wis., 131. 2 It is not necessary to negative the proviso in the statute. 1 Bish. Cr. P., §639; Lequat v. People, 11 Ills., 330; Metzgar v. People, 14 Ills., 101; contra, Mills v. Kennedy, 1 Bailey, 17. 3 Probably it is not necessary that the conclusion should be against the form of the statute. 2 Bish. Cr. P., § 115. 5 R. S., 355, § 27; Andrew v. Thayer, 30 Wis., 228. 2 Arch. C. P. & Pl., 1072; 1 Hawk P. C. C., 83, §4; Barker v. Barker, 14 Wis., 131; Underwood v. Riley, 19 Wis., 412; Miller v. Larson, Id., 463. any other valuable thing for the purpose of maintaining the action, and by taking and holding possession of lands in controversy for a party to the suit by force or subtilty.1 Hawkins 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," but we cannot think that such is the law under our statute.2 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 counselor or attorney. A mere promise to maintain a suit is not in itself maintenance. An attorney-at-iaw may contract to render services in the conduct of a suit for a fee contingent upon his success therein, and such fee may be a stipulated percentage of the amount, or a portion of the property recovered. Such contract does not make the attorney guilty of maintenance. Otherwise in case he undertakes to pay any part of the expenses of the litigation.5 $240. Evidence of Want of Interest. 2. It must be shown, unless the circumstances are such that it will be presumed that the suit in nowise belonged to or concerned the defendant. Probably under ordinary circumstances, this being a negative fact, particularly within the knowledge of the defendant, will be presumed unless the contrary is shown. If a person has an interest in a thing, whether great or small, certain or uncertain, vested or contingent, he may assist in maintaining an action for it. For example, it is not main tenance for a vendor with a warranty to uphold his vendee in 12 Bish. Cr. L., § 123; Baley v. Deakins, 5 B. Monr., 159. 2 Bish. Cr. L., § 126. 2 Hawk P. C. C., 83, § 9. Id., §8; 2 Arch C. P. & Pl., 1072. 5 Allard v. Lamirande, 29 Wis., 502; Stearns v. Felker, 28 Wis., 595. 7 Great Western R. R. Co. v. Bacon, 30 Ills., 347; Potter v. Deyo, 19 Wen., 361. Master v. Miller. 4 T. R., 320; Thalihimer v. Brinckerhoff, 3 Cowen, 639; Lathrop v. Amherst Bank, 9 Met., 489; Knight v. Sawin, 6 Greenl, 361; Cummins v. Latham, 4 B. Monr., 105; Wickham v. Conklin, 8 John., 220. a suit about the title. An heir-apparent is permitted to do the same for an ancestor concerning the inheritance of land of which he is seized in fee. So where several are interested in the general question to be decided, they may contribute to the expense of obtaining a judicial determination of that question.3 § 241. 3. Evidence of Intermeddling to Promote Litigation.-3. It must be proved that the intermeddling, by maintaining or assisting in the prosecution or defense of the suit, was with a view to promote litigation. Many acts deemed maintenance at common law are not offenses under our statute, for the reason that they are not done with a view to promote litigation. An attorney may maintain a suit for a party under an agreement to divide the money or property recovered without being deemed guilty of maintenance. The statute permits "a man to maintain the suit of his kinsman, servant or any poor person out of charity." And under a variety of circumstances landlords and tenants may assist one another in their suits, but a servant cannot lawfully lay out his own money to assist the master in his suit if done with a view to promote litigation. The general rule is that whenever there is a moral duty to assist another in a cause, or the act is done without the intent of promoting litigation, the assistance rendered is no violation of law." § 242. Champerty. The common-law offenses of champerty and barratry, except so far as they are included in the statu 1 Williamson v. Sammons, 34 Ala., 691; Goodspeed v. Fuller, 46 Me., 141. 21 Hawk P. C. C., 457, § 18; Persse v. Persse, 7 Cl. & F., 279; Thalihimer . Brinckerhoff, 3 Cowen, 639. 3 Gowen &. Nowell, 1 Greenl., 293; Frost v. Paine, 12 Me., 111. 'R. S., 355, § 27. 'Newkirk v. Cone, 18 Ills., 449. 6 R. S., 355, § 27. '1 Hawk P. C. C., 459, § 27; Thalihimer v. Brinckerhoff, 3 Cowen, 623. 1 Hawk P. C. C., 83, §§ 36, 37. 2 Bish. Cr. L., § 128. tory offenses of barratry and maintenance, are abolished in this state.1 14. COMPOUNding a CrimE. § 243. Provisions of the Statute. "Whoever takes money, goods, chattels, lands or other reward, or promise thereof, to compound any criminal offense, shall be fined in double the sum or value of the thing agreed for or taken; but no person shall be debarred from taking his goods or property from the thief or felon, or receiving compensation for the private injury occasioned by the commission of any such criminal offense."2 $244. Jurisdiction. A justice of the peace has jurisdiction. to try the offense only where the sum or value of the thing agreed for or taken does not exceed one hundred dollars.* STATEMENT OF THE OFFENSE OF COMPOUNDING A CRIME. (Commence by stating the offense compounded as in ordinary cases and then add) that C. D. afterwards, to wit., on the day of, A. D 18—, at, etc., in the said county, well knowing the said criminal offense had been committed, did unlawfully take and receive of the said E. F. a large sum of money, to wit., the sum of fifty dollars, to then and there compound the said criminal offense, contrary to the form of the statute in such case made and provided (conclude as in form on page 112). $245. Rule at Common Law and under the Statute as to Compounding Crimes. - At common law it was not uncommon when a person was convicted of a misdemeanor which principally and more immediately affected some individual, as battery, imprisonment, or the like, for the court to permit 1 Newkirk v. Cone, 18 Ills., 449. In Ohio, Key v. Vattier, 1 Ohio, 132, Iowa, Wright v. Meek, 3 Greene, 472, and Vermont, Danforth v. Streeter, 28 Vt., 490, champerty is not a criminal offense. Where the time of committing the offense is alleged to be on a day subsequent in date to that on which it was charged to have been com. pounded, although charged to have been compounded afterwards, the affidavit is insufficient. State v. Dandy, 1 Brev., 395. the defendant to speak with the prosecutor before any judgment was pronounced, and if the prosecutor declared himself satisfied, to inflict but a trivial punishment;' but in this state, under our statute,2 there can be no settlement or compounding of either a felony or a misdemeanor. Even in an action on a penal statute, the plaintiff has no right to compound with the defendant without leave of the court, but he has a right to receive payment of the penalty or judgment, and may discharge it without leave of the court.5 Where a person who § 246. What a Compounding of a Crime. is charged with larceny pays money to the person from whom the property was stolen, upon an agreement that the latter would not prosecute for the larceny, that would be compounding a felony, and would of itself constitute a crime, and be punishable as such. If, however, the money was paid to the owner of the property stolen, for the purpose of reimbursing the latter for the expense he had incurred in searching for the property, the taking or receiving the money would not be criminal." Where a man accused his cashier of stealing money, and the cashier gave his note indorsed by his father to settle the matter, there being no prosecution set on foot or agreement not to prosecute it, it was held that there was no compounding a crime. Accepting the promissory note of one guilty of larceny, as a consideration for not prosecuting the offense, amounts to a compounding of a felony. 8 1 4 Blackf., 363; Beeley v. Wingfield, 11 East, 46; Baker v. Townsend, 7 Taunt., 422; Kirk v. Strickwood, 4 B. & Ad., 421. 2 R. S., 358, § 43. Jones v. Rice, 18 Pick., 440; Com. v. Pease, 16 Mass., 91; Plumer v. Smith, 5 N. H., 553; Rex v. Stone, 4 Car. & P., 379; Bothwell v. Brown, 51 Ills., 234; Taylor v. Cottrell, 16 Ills., 94. 'Collins v. Blantern, 2 Wilson, 341; Edgecombe v. Rodd, 5 East, 294; Jones v. Rice, 18 Pick., 440; Beeley v. Wingfield, 11 East, 46, n. 1. Bradway qui tam v. Leworthy, 9 John., 251; Plummer v. Smith, 5 N. H., 553; Bailey v Buck, 11 Vt., 252; Burr., 1929; Crowel qui tam v. Woodworth, 11 John., 474; Hinesburg v. Sumner, 9 Vt., 26. Bothwell v. Brown, 51 Ills., 234; Taylor v. Cottrell, 16 Ills, 94. 'Catlin v. Henton, 9 Wis., 476. * Com v. Pease, 16 Mass., 94; Com. v. Corey, 2 Mass., 524; 1 Camp., 45; 2 M. & S., 201. |