Abbildungen der Seite
PDF
EPUB

it was held that this was maintenance in its worst aspect. The plaintiff and Rosaz, entire strangers to the property, which they said the defendant had a title to, but which was in the possession of another claiming title to it, agreed with the defendant that legal proceedings should be instituted in his name for the recovery of it, and that they would supply him, not with any specified or definite documents. or information, but with evidence that should be sufficient to enable him successfully to recover the property; each of them was to have one-fifth of the property when so recovered; and unless the evidence. with which they supplied him was sufficient for this purpose, they were to have nothing. They were not to employ the attorney or to advance money to carry on the litigation; but they were to supply that upon which the event of the suit must depend, evidence; and they were to supply it of such a nature and in such quantity as to secure success. The plaintiff purchased an interest in the property in dispute, bargained for litigation to recover it, and undertook 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 (m) is an express authority to that effect. (n)

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. (0) Offences of this kind are also restrained by several statutes. 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. See also 32 Hen. 8, c. 9.(p)

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. (g)

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. (r)

(m) Supra.

(n) Sprye v. Porter, 7 E. & B. 58.

(0) Bac. Abr., Maintenance (E). 1 Hawk. P. C. c. 86, s. 1. Moore, 751. Hob. 115.

Plowd. 80.

(p) For the construction of this statute, see 1 Hawk. P. C. c. 86, s. 7, et seq.

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

(r) See 1 Hawk. P. C. c. 80, s. 43, et seq.

CHAPTER THE TWENTY-SECOND.

OF EMBRACERY AND DISSUADING A WITNESS FROM GIVING EVIDENCE.

EMBRACERY is another species of maintenance, and consists in such practices as tend to affect the administration of justice by improperly working upon the minds of jurors. It seems clear that any attempt whatsoever to corrupt or influence or instruct a jury in the cause beforehand, or in 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 on whom such attempt is made give any verdict or not, or whether the verdict given be true or false. (a) And it has been adjudged that the bare giving of money to another, to be distributed among jurors, is an offence of the nature of embracery, whether any of it be afterwards actually so distributed or not. It is also clear that it is as criminal in a juror as in any other person to endeavour to prevail with his companions to give a verdict for one side by any practices whatsoever; except only by arguments from the evidence which may have been produced, and exhortations from the general obligations of conscience to give a true verdict. And there can be no doubt but that all fraudulent contrivances whatsoever to secure a verdict are high offences of this nature; as where persons by indirect means procure themselves or others to be sworn on a tales in order to serve one side. (b)

The law will not suffer a mere stranger so much as to labour a juror to appear, and act according to his conscience: but it seems clear that a person who may justify any other act of maintenance (c) may safely labour a juror to appear and give a verdict according to his conscience; but that no other person can justify intermeddling so far. And no one else whatsoever can justify the labouring a juror not to appear. (d)

Offences of this kind subject the offender to be indicted and punished by fine and imprisonment in the same manner as all other kinds of unlawful maintenance do by the common law. (e) They are also restrained by statutes; the 5 Edw. 3, c. 10, enacting that any juror taking of the one party or the other, and being duly attainted, shall not be put in any assizes, juries, or inquests, and shall be commanded to prison, and further ransomed at the King's will; and the 34 Edw.

(a) 1 Hawk. P. C. c. 86, s. 1, 5, 4 Black. Com. 140.

(b) 1 Hawk. P. C. c. 85, s. 4. R. v. Opie, 1 Saund. 301. As to giving money to

a juror after the verdict, see 1 Hawk. P. C. c. 85, s. 3.

(c) Ante, 478, et seq.

(d) 1 Hawk. P. C. c. 85, s. 6.
(6) Id. s. 7. 4 Black. Com. 140.

3, c. 8, enacting, that a juror attainted of such offence shall be imprisoned for a year. The 32 Hen. 8, c. 9, enacts that no person shall embrace any freeholders or jurors upon pain of forfeiting ten pounds, half to the King, and half to him that shall sue within a year. (f)

The 6 Geo. 4, c. 50, s. 62, repeals so much of the 5 Edw. 3, c. 10, 'as relates to the punishment of a corrupt juror,' and so much of the 34 Edw. 3, c. 8, 'as directs the proceedings against jurors taking a reward to give their verdict;' and enacts and declares, by sec. 61, that notwithstanding anything herein contained, every person who shall be guilty of the offence of embracery, and every juror who shall wilfully or corruptly consent thereto, shall and may be respectively proceeded against by indictment or information, and be punished by fine and imprisonment, in like manner as every such person might have been before the passing of this Act.'

All who endeavour to stifle the truth, and prevent the due execution of justice, are highly punishable; and therefore the dissuading or endeavouring to dissuade a witness from giving evidence against a person indicted is an offence at common law, though the persuasion should not succeed. (g) 1

By the Witnesses Protection Act, 1892 (55 & 56 Vic. c. 64), — Sec. 1. In this Act the word "inquiry" shall mean any inquiry held under the authority of any Royal Commission or by any committee of either House of Parliament, or pursuant to any statutory authority, whether the evidence at such inquiry is or is not given on oath, but shall not include any inquiry by any court of justice.'

By sec. 2, 'Every person who commits any of the following acts, that is to say, who threatens, or in any way punishes, damnifies, or injures, or attempts to punish, damnify, or injure any person for having given evidence upon any inquiry, or on account of the evidence which he has given upon any such inquiry, shall, unless such evidence was given in bad faith, be guilty of a misdemeanor, and be liable upon conviction thereof to a maximum penalty of one hundred pounds, or to a maximum imprisonment of three months.'

By sec. 3, 'A prosecution for any offence under this Act may be heard and determined by a court of summary jurisdiction under the Summary Jurisdiction Acts, provided that should either the complainant or the party charged object to the case being dealt with summarily, the Court shall send such case for trial to the quarter sessions or assizes, or in cases arising within the metropolitan area to the Central Criminal Court.'

By sec. 4 'It shall be lawful for any Court before which any person may be convicted of any offence under this Act, if it thinks fit, in addition to sentence or punishment by way of fine or imprisonment, to condemn such person to pay the whole or any part of the

(f) Upon the construction of these statutes, see 1 Hawk. P. C. c. 85, s. 11, et seq.

(g) 1 Hawk. P. C. c. 21, s. 15. R. v. Lawley, 2 Str. 904. As to mere attempts to commit crimes, see ante, p. 195. And see an indictment for dissuading a witness from

giving evidence against a person indicted, 2 Chit. Crim. L. 235; and an indictment for a conspiracy to prevent a witness from giving evidence, R. v. Steventon, 2 East, R. 362. And see R. v. Edwards, ante, p. 293.

AMERICAN NOTE.

1 See S. v. Keyes, 8 Verm. 57; S. v. Carpenter, 20 Verm. 9.

costs and expenses incurred in and about the prosecution and conviction for the offence of which he shall be convicted, and, upon the application of the complainant, and immediately after such conviction, to award to complainant any sum of money which it may think reasonable, having regard to all the circumstances of the case, by way of satisfaction or compensation for any loss of situation, wages, status, or other damnification or injury suffered by the complainant through or by means of the offence of which such person shall be so convicted, provided that where the case is tried before a jury, such jury shall determine what amount, if any, is to be paid by way of satisfaction or compensation.'

By sec. 5, 'The amount awarded for such satisfaction or compensation, together with such costs, to be taxed by the proper officer of the court, shall be deemed a judgment debt due to the person entitled to receive the same from the person so convicted, and be recoverable accordingly.'

CHAPTER THE TWENTY-THIRD.

OF BARRATRY, AND OF SUING IN THE NAME OF A FICTITIOUS PLAINTIFF.

A BARRATOR is defined to be a common mover, exciter, or maintainer of suits or quarrels, in courts of record, or other courts, as the county court, and the like; or in the country, by taking and keeping possession of lands in controversy, by all kinds of disturbance of the peace, or by spreading false rumours and calumnies whereby discord and disquiet may grow among neighbours. (a) But one act of this description will not make anyone a barrator, as it is necessary in an indictment for this offence to charge the defendant with being a common barrator, which is a term of art appropriated by law to this crime. (b) It has been holden, that a man shall not be adjudged a barrator in respect of any number of false actions brought by him in his own right; (c) but this is doubted, in case such actions be merely groundless and vexatious, without any manner of colour, and brought only with a design to oppress the defendants. (d) 1

1

An attorney cannot be deemed a barrator in respect of his maintaining another in a groundless action, to the commencing whereof he was in no way privy. (e) And it seems to have been holden that a feme covert cannot be indicted as a common barrator; (f) but this opinion is considered as questionable. (g)

In an indictment for this offence it seems to be unnecessary to allege it to have been committed at any certain place; because, from the nature of the crime, consisting in the repetition of several acts, it must be intended to have happened in several places; wherefore it is said that the trial ought to be by a jury from the body of the county. (h) As the indictment may be in a general form, stating the defendant to be a common barrator, without showing any particular facts, it is clearly settled that the prosecutor must, before the trial, give the defendant a note of the particular acts of barratry which he intends

(a) R. v. Urlyn, 2 Saund. 308, note (1). 1 Hawk. P. C. c. 81, ss. 1, 2. Co. Litt. 368. 8 Rep. 36. Barrator is said to be a forensic term taken from the Normans. The Icelandic and Scandinavian barrata, the AngloNorman baret, and the Italian baratta, are all words signifying a quarrel or contention. See the notes to Bac. Abr. tit. Barratry (A). (b) 8 Co. 36 R. v. Hardwicke, 1 Sid. 282. R. v. Hannon, 6 Mod. 311.

(c) Roll. Abr. 355.

(d) 1 Hawk. P. C. c. 81, s. 3.
(e) 1 Hawk. P. C. c. 81, s. 4.

(f) Bac. Abr. tit. Baron and Feme, (G) in the notes, citing Roll. Rep. 39.

(g) 1 Hawk. P. C. c. 81, s. 6.

(h) Parcel's case, Cro. Eliz. 195. 1 Hawk. P. C. c. 81, s. 11. Bac. Abr. tit. Barratry (B).

AMERICAN NOTE.

1 See C. v. McCulloch, 15 Mass. Rep. 227. When a man purchased three notes and brought three separate suits on them, and

levied separate executions oppressively, it was held that though this was not barratry it was still an indictable offence.

« ZurückWeiter »