TIT. 114. A. D. 1300. St. 28 Ed. 1. c. 11. P. L. 30. be taken to TITLE 114. Maintenance-Embracerp. 1. "AND further, because the king hath heretofore ordained by statute, that none of his ministers shall take no plea for maintenance, by which statute other officers were not bounden before this time;" The king will, that no officer nor any other (for to have part of the thing in plea) shall not take upon bim the business that is in suit; nor none upon any such coNothing shall venant shall give up his right to another; and if any do, and he be attainted thereof, the taker shall forfeit unto the king so maintain any matter in suit. 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 attaindre, whosoever will, shall be received to sue for the king before the justices, before whom the 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 learned men in the law for his fee, or of his parents and next friends.'* A. D. 1330. 11. P. L. 32. Judges to take cognizance of. 2. "Item, where in times past divers people of the realm, as St. 4 Ed. 3. c. well great men as other, have made alliances, confederacies, and conspiracies, to maintain, parties, pleas, and quarrels, whereby divers have been wrongfully disinherited, and some ransomed and destroyed, and some for fear to be maimed and beaten, durst not sue for their right, nor complain, nor the jurors of inquests give their verdicts, to the great hurt of the people, and slander of the law, and common right;" It is accorded, That the justices of the one bench and of the other, and the justices of assizes, whensoever they come to hold their sessions, or to take inquests upon nisi prius, shall inquire, hear, and determine, as well at the king's suit, as at the suit of the party, of such maintainers, bearers and conspirators, and also of them that commit champerty, and of all other things contained in the aforesaid article, as well as justices in eyre should do if they were in the same county. And that which cannot be determined before the justices of the one bench or the other * Maintenance, common barretry, and embracery, are offences against public justice: they pervert the process of law into an engine of oppression. See 4 Bl. Com. 134. 140. Maintenance signifies help, counte hance, and assistance in a suit depending or existing-Litigatio malo animo-It was against the common law. 2 Inst. 212. The doctrine of maintenance, by the ancient law of England, extended to a number of cases which in modern times are not considered to be within either the reason or policy of the law. The assignment of a chose in action (as a bond, for example) was held to be maintenance. Co. Litt. 214. A friendly and disinterested assistance, by the advancement of money, or otherwise, to enable a party to support his cause (no matter how pure the motive) was regarded as an offence within the law against maintenance. But this unreasonable rigour has been gra dually relaxed. See 4 Durnf. and East's Rep. 340. upon the nisi prius, for shortness of time, shall be adjourned into the place whereof they be justices, and there be determined as right and reason shall require."* TIT. 114. S. 'Item, we have commanded and utterly defended, that A. D. 1346. none of our house, nor of them that be about us, nor other, St. 20 Ed.3.c.4 P. L. 33. which be towards our dear beloved companion the queen, or 4 Bl.Com. 134 our son Prince of Wales, or towards our courts, nor prelates, earls, barons, nor other, great nor small of the land, of what estate or condition they be, shall not take in hand quarrels other than their own, nor the same maintain by them nor by other, privily nor apertly, for gift, promise, amity, favour, doubt nor fear, nor for none other cause, in disturbance of law and hinderance of right, upon the pains aforesaid; but that every man may be free to sue for and defend his right in our courts and elsewhere, according to the law. And we have straitly commanded our said son, and divers earls and other great men, being before us, that they on their behalf shall do to be kept this ordinance without default, and that they suffer none which be towards them to attempt against this ordinance by any way.' No. 1. 4.Item, It is ordained and established, and the king strait- A. D. 1377. ly commandeth, That none of his counsellors, officers or ser- St. 1 Rich. 2. vants, nor any other person within the realm of England, of c.4. whatsoever estate or condition they be, shall from henceforth P. take nor sustain any quarrel by maintenance in the country, nor elsewhere, upon a grievous pain; that is to say, the said counsellors and the king's great officers, upon a pain which shall be ordained by the king himself, by the advice of the lords of his realm; and other less officers and servants of the king, as well in the exchequer, and all his other courts and places, as of his meiny, upon pain to lose their offices and services, and to be imprisoned, and then to be ransomed at the king's will, every of them according to their degree, estate and desert; and all other persons through the realm upon pain of imprisonment, and to be ransomed as the other aforesaid.' Champerty: 5. The king our sovereign lord, calling to his most blessed A. D. 1540. rememberance, that there is nothing within this realm that St.32 H. 8.c.9. conserveth his loving subjects in more quietness, rest, peace P. L. 53. and good concord, than the due and just ministration of his laws, and the true and indifferent trials of such titles and issues, as been to be tried according to the laws of this realm, which his most royal majesty perceiveth to be greatly hindered and letted by maintenance, embracery, champerty, subornation of witnesses, sinister labour, buying of titles and pretensed rights of persons not being in possession, whereupon great perjury hath ensued, and much inquietness, oppression, vexation, troubles, wrongs and disinheritance hath followed among his most loving subjects, to the great displeasure of Almighty God, the discontentation of his majesty, and to the great hinderance and let of justice within this his realm: For the avoiding of all which misdemeanors, and buying of titles * See St. 32 H. 8. c. 9. within. TIT. 114. and pretensed rights, and to the intent that justice may be more fully and indifferently ministered, and the truth in cauA. D. 1540. ses of contention plainly tried between his subjects of this St.32H.8.c.9. realm: Be it enacted, That from henceforth all statutes heretofore made concerning maintenance, champerty and embracery, or any of them, now standing and being in their full strength and force, shall be put in due execution, according to the tenures and effects of the same statutes. P. L. 53. Proviso. 6. And furthermore, that no manner of person or persons, of what estate, degree or condition soever he or they be, do hereafter unlawfully maintain, or cause, or procure any unlawful maintenance, in any action, demand, suit or complaint in any of the king's courts of the chancery, the star-chamber, Whitehall, or elsewhere within any of the king's dominions of England and Wales, or the marches of the same, where any person or persons have or hereafter shall have authority, by virtue of the king's commission, patent or writ, to hold plea of lands, or to examine, hear or determine any title of lands, or any matter or witnesses concerning the title, right or interest of any lands, tenements or hereditaments; and also that no person nor persons, of what estate, degree or condition soever he or they be, do hereafter unlawfully retain, for maintenance of any suit or plea any person or persons, or embrace any freeholders or jurors, or suborn any witness, by letters, rewards, promises, or any other sinister labour or means, for to maintain any matter or cause, or to the disturbance or hinderance of justice, or to the procurement or occasion of any manner of perjury by false verdict or otherwise, in any manner of courts aforesaid, upon pain to forfeit for every such offence x. li. the one moiety thereof unto the king our sovereign lord, and the other moiety to him that will sue for the same by action of debt, bill, plaint or information in any of the king's courts; in which action, no essoin, protection, wager of law, nor injunction shall be allowed. [See Title 129, Perjury, &c.] 7. And for the due execution of this present act, Be it further enacted, That the justices of assise of every circuit within this realm, and elsewhere within the king's dominions, shall in every county within their circuits, two times in the year, that is to say, in the time of their sittings for the taking of assises or delivery of the gaols, cause open proclamation to be made, as well of this present act, and of every thing therein contained, as also of all other statutes heretofore made against unlawful maintenance, champerty, embracery, or unlawful retainers, to the intent that no manner of person or persons, hearing the same, should be ignorant or miscognisant of the dangers and penalties therein contained and specified. 8. Provided alway, That this act shall not extend to charge any person or persons with any of the penalties mentioned in the said act, for any offence by him or them committed contrary to the said act, except the same person or persons so offending be sued thereof by action of debt, bill, plaint or information in any of the king's courts, within one year next after the same offence by him or them committed, as is aforesaid. [See Title 105, Judges.] TITLE 115. Malicious Mischief. 1.WHERE divers and sundry malicious and envious per- TIT. 115. sons, being men of evil and perverse dispositions, and seduced by the instigation of the devil, and minding the hurt, undoing A. D. 1545. and impoverishment of divers of the king's true and faithful St.37 H.8.c.6. subjects, as enemies to the commonwealth of this realm, and P. L. 56. By burning or as no true or obedient subjects unto the king's majesty, of their cutting malicious and wicked minds, have of late invented and practi- frames. sed a new damnable kind of vice, displeasure, and damnifying of the king's true subjects, and the commonwealth of this realm, as in secret burning of frames of timber prepared and made by the owners thereof, ready to be set up and edified for houses; cutting out of heads and dams of pools, motes, stews, and several waters; cutting off conduit-heads or conduit-pipes; burning of wains and carts loaden with coals or other goods; burning of heaps of wood, cut, felled and prepared for making of coals; cutting out of beasts tongues; cutting off the ears of the king's subjects; barking of apple-trees, pear-trees, and other fruittrees; and divers other like kinds of miserable offences; to the great displeasure of Almighty God, and of the king's majesty, and to the most evil and pernicious example that hath been seen in this realm:' 2. For remedy whereof, Be it enacted, That if any person or Destroying persons, at any time after the first day of May next ensuing, frames, &c. maliciously, unlawfully, willingly and secretly burn, or cause to be burned, cut, or cause to be cut or destroyed, any frame or frames of timber of any other person or persons, made and prepared, or hereafter to be made or prepared, for or towards the making of any house or houses, so that the same shall not be able for the purpose for the which it was prepared; that then every such act and acts so to be committed, perpetrated, and done by any person or persons, shall be deemed and adjudged felony, and the offender or offenders therein, being lawfully convicted or attainted, shall have and suffer pains of dea and shall lose and forfeit goods and chattels for ever, and the profits of their lands, tenements and hereditaments for term of his or their lives. [See within; St. 22 & 23 Ch. 2. c. 7.]* blood, &c. 3. Provided always, That such attainder shall be no avoid- Proviso. ing of any woman's dower, ne corruption of blood against the Not to work heir or heirs of such offender or offenders; But be it enacted, corruption of That the wife and wives of such offender or offenders shall have their dowers; and that such heir and heirs shall, after the decease of the said offender, have and enjoy the said lands, tene ⚫ See A. A. 1787. [P. L. 430.] There shall be no forfeiture of property for felony. TIT. 115. ments and hereditaments of such offender and offenders, in like manner and form as they should have had, if this act, or any such attainder had never been had ne made. And that St. 37 H.8.c.6. the heir or heirs having the said lands, tenements or hereditaP. L. 56. A. D. 1545. By cutting dams, &c. or by burning ments of any estate of inheritance, shall yield unto the party grieved for such offence or offences, his damages of the profits of the said lands, tenements or hereditaments of such offender or offenders, whereunto he shall be inheritable, by action of debt to be taken in the common bench at Westminster; in which action, no wager of law, essoin, ne protection shall be allowed.* 4. And if any person or persons, after the said first day of May, maliciously, wilfully and unlawfully cut or cause to be cut out the head or heads, dam or dams of any ponds, pools, wood, &c. or motes, stews, or other several waters, or the head or heads, by cutting out the tongues of pipe or pipes of any conduit or conduits of any other person living beasts, or persons; or maliciously, willingly and unlawfully, after the &c. or cutting said first day of May, burn or cause to be burned any wain or off the ears of wains, cart or carts, laden or to be laden with coals or any men, &c. other goods or merchandizes of any other person or persons; or maliciously, willingly and unlawfully, after the said first day of May, do burn or cause to be burned any heap or heaps of wood of any other person or persons, prepared, cut and felled, or to be prepared, cut or felled, for making of coals, billets or talwood; or maliciously, unlawfully and willingly, af4 Bl.Com. 206. ter the said first day of May, cut out or cause to be cut out the tongue or tongues of any tame beast or beasts of any other person or persons, the said beast then being in life; or maliciously, willingly or unlawfully, after the said first day of May, cut or cause to be cut off the ear or ears of any of the king's subjects, otherwise than by authority of the law, chancemedley, sudden aflray or adventure; or after the said day, maliciously, willingly or unlawfully bark any apple-trees, peartrees, or other fruit-trees of any other person or persons; that then every such offender and offenders shall not only lose and forfeit unto the party grieved treble damages for such offence or offences, the same to be recovered by action of trespass to be taken at the common law, but also shall lose and forfeit to the king's majesty, and his heirs, for every such offence, x. 1. sterling in name of a fine. [See Title 113, Maiming.] A. D. 1670. 5. Whereas divers lewd and evil-disposed persons intending the ruin and impoverishment of their fellow subjects, have devised, and of late secretly in the night time, and at other times when they think their deeds are not known, frequently practised in several parts of this kingdom, unlawful and wicked courses in burning of ricks and stacks of hay, corn and grain, destroying of buildings, trees, and cutting, maiming, wounding and killing of horses, sheep, beasts, and other cattle, in Coke says this statute was repealed as to the burning of frames, by 1 Ed. 6. and 1 Mar. (Sess. 1. c. 1.) 3 Inst. 66. See 2 vol. Statutes at large, 373. |