Whoever is of kin, or godfather to either of the parties, or related by any kind of affinity still continuing, may lawfully stand by at the bar and counsel him, and pray another to be of counsel for him; but cannot lawfully lay out his money in the cause, unless he be either father, or son, or heir-apparent, to the party, or husband of such an heiress.(g)

Much of the law relating to the maintenance which a lord may give to his tenant would hardly be applicable at the present time. It seems to have been the better opinion that the lord might justify laying out his own money in defence of his tenant's title, where the lands were originally derived from the lord, but that he could not maintain the tenant in respect of lands not holden of himself.(r)

With respect to the maintenance which a master may give to his servant, it has been held that he may go along with him, or his domestic chaplain, to retain counsel; also he may pray one to be of counsel for him, and may go with him, and stand with him, and aid him at the trial, but ought not to speak in Court in favor of his cause also it is said, that if the servant be arrested, the master may assist him with money to keep him from prison, that he may have the benefit of his service; but he cannot safely lay out money for the servant in a real action, unless he have some of his wages in his hands; but those, with the servant's consent, he may safely disburse.(s) And a servant cannot lawfully lay out any of his own money to assist the master in his suit.(t)

Any one may lawfully give money to a poor man to enable him to carry on his suit any one may safely go with a foreigner, *who cannot speak English, to a counsellor and inform him of his case.(u)

[*258

A counsellor, having received his fee, may lawfully set forth his client's cause to the best advantage; but can no more justify giving him money to maintain his suit, or threatening a juror, than any other person. An attorney, also, when specially retained, may lawfully prosecute or defend an action, and lay out his own money in the suit; but an attorney who maintaius another is not justified by a general retainer to prosecute for him in all causes. Nor can an attorney lawfully carry on a cause for another at his own expense, with a promise never to expect repayment; and it is said to be questionable whether solicitors, who are no attorneys, can, in any case, lawfully lay out their own money in another's cause.(v)

Where there was one attorney on the record, and another attorney became before the trial really and substantially the attorney for the client in the conduct of the suit, and the latter after verdict, but before judgment, bona fide purchased from his client the benefit of his verdict, it was held that the transaction, being a purchase of the subject-matter of the suit by the attorney, was void; for the attorney was to be considered as the attorney having the management of the cause, and the purchase was in effect a purchase by the attorney in the cause of the subject-matter of it pendente lite, not for the purpose of enabling them to carry on the suit, but because they wanted money; and independently of the statutes restraining the purchase of property in suit, it had been held, in several cases, that no attorney can be permitted to purchase anything in litigation, of which litigation he has the management.(w)

A contract whereby an attorney stipulates with a client to receive, in consideration of the large advances requisite to conducting the proceedings to a successful issue, over and above his legal costs, a sum which should be commensurate with his

(9) Bac. Abr. tit. Maintenance (B); 1 Hawk. P. C. c. 83, s. 26.

1

(7) Hawk. P. C. c. 83, s. 29.

(8) Bro. tit. Maintenance, 44, 52; 1 Hawk. P. C. c. 83, ss. 31, 32, 33.

(t) 1 Hawk. Id. s. 34.

(u) Bro. tit. Maintenance 14; Bac. Abr. tit. Maintenance (B) 4; 1 Hawk. P. C. c. 83, 88. 36, 37.

(r) 2 Inst. 564; Bac. Abr. tit. Maintenance (B) 5; 1 Hawk. P. C. c. 83, ss. 28, 29, 30. (e) Simpson v. Lamb, 7 E. & B. 84 (90 E. C. L. R.).

"If any one lay out money in the prosecution of a suit to recover a close of which his poor neighbor has been deprived, and without which he must lose it, he is no champertor (qu. Maintainer), because right, humanity, and justice, would approve it:" Johnson, J., in State v. Chitty, 1 Bailey 401.

outlay and exertions and with the benefit resulting to the client, is unlawful. The contract would have been directly in violation of the laws against maintenance, if the stipulation had been that the plaintiff, as attorney in the suit, in consideration of his advancing the funds necessary for carrying on the litigation, should receive a portion of the proceeds or property to be recovered; and the only difference between the two cases is that, in the former, the party would have the security of the property; whereas here he has only the personal security of the client. But if he be a solvent man, he gets a share of the property by another mode, viz., by suing him and obtaining judgment.(x)

An agreement to be carried into effect in this country, which would be void on the ground of champerty if made here, is not the less void because it is made in a foreign country, where such a contract would be legal. Where, therefore, an attorney entered into an agreement in France with a French subject to sue for a debt due to the latter from a person residing here, whereby the attorney was to receive by way of recompense a moiety of the amount recovered; it was held that this agreement was void for champerty.(xx) If any act were done under such an agreement in England, the party doing it would be indictable here.(yy)

But there is a clear distinction between the assignment by a client to an attorney of the subject-matter of a suit by way of security, and an absolute sale of the sub ject-matter of the suit. In the latter case the attorney might have an oppor*259] tunity of *imposing on his client, from his superior knowledge of the value of that subject-matter, and might after the purchase take improper means to increase the value. But a mere assignment, by way of security, is open to no such danger, and may be very advantageous to the client.(y) Where, therefore, a client having recovered a verdict in an ejectment, by an indenture, reciting that he was indebted to his attorney in £100 for money lent and for work done as an attorney, and was unable to pay it, and had agreed to secure it, granted the crop of potatoes then growing upon the close, which was the subject of the action, and all other effects thereon, until payment of the £100 and interest, with a proviso that if the client paid the £100 and the interest on a certain day, the indenture should be void; and the indenture also contained a power to the attorney, on default of payment, to enter, carry away, and dispose of the effects assigned; provided that, if he sold the property, he should hold the surplus, after paying the expenses and reimbursing himself, in trust for the client; it was held that this deed could not be impeached on the ground of either champerty or maintenance.(z)

But no counsellor or attorney can justify using any deceitful practice in maintenance of a client's cause: and they will be liable to be punished for misdemeanors in this respect by the common law, and also by the statute of Westm. 1, c. 29.(a) In the construction of this statute it hath been holden that all fraud and falsehood tending to impose upon or abuse the justice of the King's courts are within the purview of it; as if an attorney sue out an habere facias seisinam, falsely reciting a recovery where there was none, and by color thereof put the supposed tenant in the action out of his freehold. Also it is an offence within the statute to bring a præcipe against a poor man having nothing in the land, on purpose to oust the true tenant, or to procure an attorney to appear for a man, and confess a judgment without any warrant; or to plead a false plea, known to be utterly groundless, and in

(x) Earle v. Hopwood, 9 C. B. (N. S.) 556 (99 E. C. L. R.). Quære, whether, if this purchase had been by a stranger, it would have been lawful.

(xx) Grell v. Levy, 16 C. B. (N. S.) 73 (111 E. C. L. R.). (yy) Rex v. Brisac, 4 East R. 163.

(y) Per Lord Campbell, C. J., Anderson v. Radcliffe, E. B. & E. 806 (96 E. C. L. R.), citing Wood v. Downes, 18 Ves. 120.

(2) Anderson v. Radcliffe, supra, affirmed in error, E. B. & E. 819 (96 E. C. L. R.), upon the ground that the contract was confined to the payment of a debt already due for costs subject to taxation, and therefore the attorney got nothing but a security for a just debt. See also Cook v. Field, 15 Q. B. 460 (69 E. C. L. R.), where an agreement to sell the possibility and expectancy of an estate, in case the vendor became devisee of it, was held lawful.

(a) 2 Inst. 215; Bac. Abr. and Hawk. supra (v). The statute enacts that the offender shall be imprisoned for a year and a day, and shall not plead again if he be a pleader.

vented merely to delay justice and to abuse the Court.(b) In most of these cases, the Court would probably grant an attachment against the offender on motion.(c) 2. Champerty is a species of maintenance, being a bargain with a plaintiff or defendant campum partire, 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.(7) It is defined in the old books to be, the unlawful maintenance of a suit, in consideration of some bargain to have part of the thing in dispute, or some profit out of it.(e)

*The statute of Westminster 1 (3 Edw. 1), c. 25, enacts, that "no officers of [*260 the King, by themselves nor by others, shall maintain pleas, suits, or matters, hanging in the King's courts, for lands, tenements, or other things, for to have part or profit thereof, by covenant made between them; and he that doth shall be punished at the King's pleasure. By the Courts mentioned in this statute it has been held that courts of record only are intended; and it has also been held that under the word covenant all kinds of promises and contracts of this kind are included; that maintenance in personal actions to have part of the debt or damages, is as much within the statute as maintenance in real actions for a part of the land; and that though a grant of rent out of other lands is not within the statute, yet the statute applies to a grant of rent out of the lands in question; but that a grant of a part of a thing in suit, made in consideration of a precedent debt, is not within its meaning.(ƒ) The maintenance of a tenant or defendant is as much within the meaning of the statute as the maintenance of a demandant or plaintiff. And it has been holden not to be material whether he who brings a writ of champerty did in truth suffer any damage by it, or whether the plea wherein it is alleged be determined. or not.(g)

The statute of Westminster 2 (13 Edw. 1), c. 49, enacts, that "the chancellor, treasurer, justices, nor any of the King's council, nor clerk of the chancery, nor of the exchequer, nor of any justice or other officer, nor any of the King's house, clerk ne lay, shall not receive any church, nor advowson of a church, land, nor tenement in fee, by gift, nor by purchase, nor to farm, nor by champerty, nor otherwise, so long as the thing is in plea before us, or before any of our officers; nor shall take no reward thereof. And he that doth contrary to this Act, either himself or by another, or make any bargain, shall be punished at the King's pleasure, as well he that purchaseth as he that doth sell." This statute extends only to the officers therein named, and not to any other persons.() But it so strictly restrains all such officers from purchasing any land, pending a plea, that they cannot be excused by a consideration of kindred or affinity, and they are within the meaning of the statute by barely making such a purchase, whether they maintain the party in his suit or not; whereas such a purchase for good consideration made by any other person, of any terre-tenant, is no offence, unless it appear that he did it to maintain the party.(i)

The 28 Edw. 1, c. 11, reciting that the King had theretofore ordained by statute that none of his ministers should take no plea for maintenance, by which statute other officers were not bounded, enacts that "the King will that no officer, nor any other (for to have part of the thing in plea) shall not take upon him the business that is in suit; nor none upon any such covenant shall give up his right to another; and if any do, and he be attainted thereof, the taker shall forfeit unto the King so much of his lands and goods as doth amount to the value of the part that he hath purchased for such maintenance. And for this atteindre, *whosoever will shall be received to sue for the King before the justices before whom the [*261 plea hangeth, and the judgment shall be given by them. But it may not be understood hereby, that any person shall be prohibit to have counsel of pleaders, or of

(b) 2 Inst. 215; Dy. 362; 1 Hawk. P. C. c. 83, s. 33, et seq.

(c) Bac. Abr. tit. Maintenance in the margin.

(d) 4 Blac. Com. 135.

(e) Per Tindal, C. J., Stanley v. Jones, 7 Bing. 377 (20 E. C. L. R.); 5 M. & P. 193. (f) See the authorities collected in 1 Hawk. P. C. c. 84, s. 3, et seq.; Bac. Abr. tit. Champerty.

(3) Ib. Ibid.

(h) 2 Inst. 484, 485.

learned men in the law for his fee, or of his parents or next friends." Upon this statute it seems to be agreed that champerty in any action at law is within it; and a purchase of land, pending a suit in equity concerning it, has also been holden to be within the statute; also a lease for life or years, or a voluntary gift of land, pending a plea, is as much within the statute as a purchase for money. But neither a conveyance executed, pending a plea, in pursuance of a precedent bargain, nor any surrender by a lessee to his lessor, nor any conveyance or promise thereof made by a father to his son, or by any ancestor to his heir apparent, nor a gift of land in suit, after the end of it, to a counsellor, for his fee or wages, without any kind of precedent bargain relating to such gift, are within the meaning of the statute.(k) A bargain by a man, who has evidence in his own possession respecting a matter in dispute between third persons, and who at the time professes to have the means of procuring more evidence, to purchase from one of the contending parties, as the price of the evidence which he so possesses or can procure, an eighth part or share of the sum of money, which shall be recovered by means of the production of that evidence, is an illegal agreement; and if there be any difference between such a contract, and direct champerty, it is strongly against the legality of such contract; as besides the ordinary objection, that a stranger to the controversy has acquired an interest to carry on the litigation to the uttermost extent, by every influence and means in his power, the bargain to furnish and to procure evidence for the consideration of a money payment in proportion to the effect produced by such evidence, has a direct tendency to pervert the cause of justice.(7) So where a bill was filed for the purpose, among other things of declaring an agreement void, which has been made by a seaman for the sale of his chance of prize money to his prize agents, who were to carry on the suit, Sir W. Grant, M. R., expressed an opinion that the agreement was void, as amounting to champerty.(m)

Where to a declaration upon an agreement the defendant pleaded that one Townley died possessed of personal property, intestate and without any known relation, and that administration had been granted to the Solicitor to the Treasury for the use of the Queen, and that the defendant was ignorant of his being related to Townley, or in any way entitled to the property, and that the plaintiff and one Rosaz represented to the defendant that they would supply and give such information and evidence, in case it should be necessary that proceedings should be taken by the defendant at law or in equity for the recovery of the property, that, by means of such information and evidence, the defendant should *and might recover *262] the property, provided the defendant would enter into an agreement with the plaintiff and Rosaz to pay each of them one-fifth of the property so recovered; and that it was thereupon unlawfully agreed between the parties that the plaintiff and Rosaz should give and supply such information and evidence in case of proceedings being taken at law or in equity for recovery of the property, that, by means of such information and evidence the defendant should successfully recover the property; and that if by means of such information and evidence the defendant should actually recover the property, he would pay each of them one-fifth of the amount; and that for the purpose of carrying this illegal agreement into effect the parties entered into the agreement set out in the declaration, and that it was under the illegal agreement that the property was actually recovered; it was held that this was maintenance in its worst aspect. The plaintiff and Rosaz, entire strangers to the property, which they say the defendant has a title to, but which is in the possession of another claiming title to it, agree with the defendant that legal proceedings shall be instituted in his name for the recovery of it, and that they will supply him, not with any specified or definite documents or information, but with evidence that shall be sufficient to enable him successfully to recover the property; each of them is to have one-fifth of the property when so recovered; and unless

(k) Bac. Abr. tit. Champerty; 1 Hawk. P. C. c. 84, s. 14, et seq. But with respect to the counsellor, it is said that it seems dangerous for him to meddle with any such gift, since it cannot but carry with it a strong presumption of champerty: 2 Inst. 564.

(7) Stanley v. Jones, 7 Bing 369 (20 E. C. L. R.); 5 M. & P. 193; Potts v. Sparrow, 6 C. & P. 749 (25 E. C. L. R.).

(m) Stevens v. Bagwell, 15 Ves. 139.

the evidence with which they supply him is sufficient for this purpose, they are to have nothing, They are not to employ the attorney or to advance money to carry on the litigation; but they are to supply that upon which the event of the suit must depend, evidence; and they are to supply it of such a nature and in such quantity as to secure success. The plaintiff purchases an interest in the property in dispute, bargains for litigation to recover it, and undertakes to maintain the defendant in the suit in a manner of all others the most likely to lead to perjury and to a perversion of justice. Upon principle such an agreement is clearly illegal, and Stanley v. Jones(o) is an express authority to that effect.(p)

3. Another species of maintenance appears to be the offence of buying or selling a pretended title; of which it is said in the books that it seems to be a high offence at common law, as plainly tending to oppression, for a man to buy or sell at an under rate a doubtful title to lands known to be disputed, to the intent that the buyer may carry on the suit, which the seller does not think it worth his while to do. And it seems not to be material whether the title be good or bad; or whether the seller were in possession or not, unless the possession were lawful and uncontested.(q) Offences of this kind are also restrained by several statutes. The 1 Rich. 2, c. 9, enacts, that no gift or feoffment of lands or goods in debate under legal proceedings, as mentioned in the statute, shall be made; and that, if made, they shall be holden for none and of no value.(r) The 26 & 27 Vict. c. 125 repeals the 1 Rich. 2. c. 9. And by the 13 Edw. 1, c. 49, no person of the King's house shall buy any title whilst the thing is in dispute, on pain of both the buyer and seller being punished at the King's pleasure. There is also a provision of the 32 Hen. 8, c. 9, that no one shall buy or sell, or obtain any pretended right [*263 or title to land, unless the seller, his ancestors, or they by whom he claims, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents or profits for one whole year before, on pain that both seller and buyer shall each forfeit the value of such land, the one-half to the King, and the other to him who will sue.(s)

The offences of champerty and buying of titles, laid or alleged in any declaration or information, may be laid in any county, at the pleasure of the informer.(t) By the common law all unlawful maintainers are not only liable to render damages in an action at the suit of the party grieved, but may also be indicted and fined, and imprisoned, &c.; and it seems that a court of record may commit a man for an act of maintenance in the face of the Court.(u)

Some pains and penalties are also attached to this offence by statute. The 1 Rich. 2, c. 4, enacts, that no person whatsoever shall take or sustain any quarrel by maintenance, in the country or elsewhere, on grievous pain; that is to say, the King's counsellors and great officers, on a pain that shall be ordained by the King himself, by the advice of the lords of this realm; and other officers of the King, on pain to lose their offices and to be imprisoned and ransomed, &c.; and all other persons, on pain of imprisonment and ransom. And by the 32 Hen. 8, c. 9, maintenance is subjected to a forfeiture of ten pounds: one moiety to the King, and the other moiety to the informer. (v)

(0) Supra.

(P) Sprye v. Porter, 7 E. & B. 58 (90 E. C. L. R.).

(9) Bac. Abr. Maintenance (E); 1 Hawk. P. C. c. 86, s. 1; Moore 751; Hob. 115; Plowd. 80.

(r) But as between the feoffor and feoffee, feoffments of this kind are effectual: Co. Lit. 369.

(*) But the statute provides that any person, being in lawful possession by taking the rents and profits, may buy or get the pretended right or title of any other person to the same. And it also provides, that no person shall be charged with these penalties unless sued within a year after the offence. For the construction of this statute, see 1 Ilawk. P. C. c. 86, s. 7, et seq.

(1) 31 Eliz. c. 5, s. 4; 1 Hawk. P. C. c. 84, s. 20, and c. 86, s. 18.

(u) 2 Roll. Abr. 114; Inst. 208; Hetl. 79; 1 Hawk. P. C. c. 83, s. 38; Bac. Abr. tit. Maintenance (C).

(r) For the construction of these statutes see 1 Hawk. P. C. c. 80, s. 43, et seq.