Jurisdictions, Part 146
Maintenance.
In ſo much that Maintenance may be the better avoided, let us ſee what maintenance is forbidden by the Law
THat no Clark of a Juſtice or Sheriffe ſhall not maintain parties in quarrels, nor in buſineſſes which are in the Kings Court, Weſt: 2. chap: 28.
That none of the Kings Counſellors, nor none of his houſe, nor none of his other ſervants, nor no great ones of the Land by ſending of their Letters, nor in other manner, nor no other of the Realm, ſhall not undertake to maintain quarrels, nor parties in the Country in diſturbance of the Common Law, 1 Ed: 3. chap: 14. See 20 Ed: 3. chap: 3.
That no Counſellor, Officer, or Servant, nor any other perſons, ſhall not uphold or maintain any quarrels by maintenance, in the Country nor elſewhere, firſt of R. 2. chap: 4.
That henceforth none buy or ſell, or take promiſe, grant or Covenant, to have Mannors, Lands, Tenements, or hereditaments. But if ſuch perſon which ſells, their Heirs, or they by whom they claim have been in poſſeſſion of the ſame, or of the reverſion or remainder of that, or hath taken Rents or profits of that, by the ſpace of one whole year, next before that bargain, Covenant, Grant, or promiſe, made upon pain of him that bargains, to forfeit the value of the Lands, And the Buyer alſo knowing that to forfeit alſo the value of the Land, the one half to the King, the other to him which will ſue for the ſame, within one year after the ſame offence.
And it is alſo Enacted, that none from henceforth unlawfully maintain; or cauſe, or procure any unlawfull maintenance in any action or complaint, in any of the Courts of the King of the Chancery: Starr-Chamber, White-Hall, or otherwhere within the Kings Dominions, where they have power to hold Plea of Land by Commiſſion, Patent, or Writ. And alſo that none ſhall inſtruct Jurors or ſubborn Witneſſes, by Letters, Promiſes, or by any other ſiniſter labour or means, to maintain any matter or cauſe, or to hinder Juſtice, or to procure or occaſion any manner of perjury, upon pain of forfeiture, for every ſuch offence 10 l. one half to the King, and the other to him that will ſue for the ſame, within one year after the ſame offence, 32. H. 8. chap: 9.
If one will ſay he will maintain, and doth it not, he ſhall not be puniſhed for maintenance, And Champerty lies, where one purchaſes, hanging the Suit, 9. H. 7. fol: 18.
See 3 H. 6. fol: 53. It ſeems it is no maintenance to give money before a Suit begins, but hanging the Suit, Maintenance, the Writ was in Plea, which was hanging, he maintains, and it is good, and it ſeems it is better to ſay in Plea, which was hanging, 10. H. 7. f. 27.
It ſeems one may covenant to have part of an Obligation when it is recovered, for travelling with an Alien which cannot ſpeak Engliſh, nor Latine to his Counſell, ſo one may covenant with one indebted to him, and deliver him the Obligation of another, in ſatisfaction of his Debt, to ſue in his name, and notwithſtanding that he paid Counſell, it is no Champerty. Every Champerty implies in it Maintenance, but not of the contrary, and he to whoſe uſe, and every one that hath lawfull Intereſt in the Land may maintain, 15 H. 7. f. 2.34. H. 6. fol. 33. the ſame.
By Fineux, If a Servant be arreſted for Debt, or other thing in London, or other Franchiſe, the Maſter may maintain him, and ſpend of his proper money for loſse of his Service, Inquire. But otherwiſe it is in Precipe, 21 H. 7. fol. 40. B. See 21 H. 6. fol. 19. by Newton.
By Newton, and Paſton, Servant may pray one skilled in the Law, to be of Counſell with his Maſter, but a ſtranger cannot pray one to be of Counſell with my Adverſary, for he hath nothing to do, 21 H. 6. fol. 19.
If a man be at the Barre, and another informs the Court, that this man can declare the truth, and pray that he be ſworn; and by the commandement of the Court he ſwears, this is Maintenance iuſtifiable, but if he had ſaid for one, or the other, of his own head, this is Maintenance puniſhable: the ſame Law, if he informe a Jury ſworn, of his own head, it is Maintenance puniſhable, 28 H. 6. f. 6.
The Maſter may pray one skilled in the Law, to be Counſell with his Servant, and this is Maintenance iuſtifiable, but he cannot give of his own proper goods to diſtribute to men of the Countrey, for maintaining his quarrell; for then he meddles with a thing forbidden by the Law; and by Priſot he may iuſtifie giving money to Lawyers to be of Counſell with his Servant, but not to give money to others, not learned in the Law, 28. H. 6. fol. 12.
By Forteſcue, Maſter may pray one learned in Law, to be of Counſell with his Servant, but not to give to them money, unleſs it be of his Wages, and he ſaith one skilled in the Law, may be of Counſell without a Fee, Inquire 31. H. 6. f. 2.36 H. 6. fol. 29.3 H. 6. f. 55. Maintenance one may iuſtifie, for that he is his Servant, but he cannot give money.
Maintenance, Defendant iuſtifies that he is a Bail, and that he came to the Defendants Attorney, and prayed him to be carefull, the which is the ſame Maintetenance, by Priſo…, it is not good to ſay it is the ſame maintenance, for this is no Maintenance, for every ſtranger may pray the Attorney, for it is the part of an Attorny to attend to that, and for that it is no Maintenance, 32 H. 6. f. 29.
It is iuſtifiable to ſpeak to a Lawyer for him, that he cannot ſpeak Engliſh, and by Laken, Maſter may pay money of his Servants Wages to the Counſell, by the conſent of his Servant, but a Bail cannot pray a man learned in the Law, to be of Counſell, but may come and ſee if his appearance be recorded, and it ſeems that the Father may give of his own money for his Sonne and Heir, for he is bound to find him, contrary of another Cozine, 34 H. 6. fol. 27. B.
If one be retained to ride to London, and when he comes there to maintain him, this is not inſtifiable, but it ſeems otherwiſe, if he were hired for the iourney, that is iuſtifiable, and the ſame of a Servant, 39 H. 6. fol. 6.19 H. 6. fol. 31.
Where one hath property in the thing demanded, he may maintain by Moyle, as goods or writings are delivered to J.S. and Detinue is brought againſt him by a ſtranger, the Deliverer may maintain, and in Precipe quod reddat, or Aſſ. againſt a Farmer the Leſſor may maintain, 39 H. 6. f. 21. See 9 H. 6. f. 64 the ſame.
Where one hath Rent out of Land in Fee, and hath the Writings granted unto him by R. the Grantee may maintain R. in Detinue of writings of the ſame Rent, and it ſeems that a Maſter may maintain his Servant, and a man may maintain his blood, and his kindred, and give money to the poore, and that Maintenance is iuſtifiable, and he in Reverſion may maintain his Tenant for life, after Attournment, and not before, and this is ſeen in giving his own proper money, 9 H. 6. f. 64. See 14 H. 7. f. 2. by Reade.
In attaint, it ſeems that one may aid and maintaine his Cozen in aiding and councelling him at the bar, 12 H. 6. f. 2. R.
Maintenance in Aſſiſe of Freſh force, Defendant Juſtifies for that he was of his aliance, and ſhews how cozen, and it ſeemed good, by which the Plaintif ſaith that he promiſed ten ſhillings peice to two of the Jury to paſſe for him, 20 H. 6. f. 1.21 H. 6. f. 19. By Paſton a man may maintaine his Kinn and his Allies.
Maintenance, Defendant juſtifie, that the party was his Chapleine …etained with him, and he gave him notice who he ſhould have of his Councell, which is the ſame maintenance, and it ſeems that is no maintenance: And for that the Defendant ſaith, that he was at the Barr to aid him, and that is a good Juſtification to ſay that is the ſame maintenance, 19 H. 6, f, 30.
In maintenance, Defendant cannot plead not-guilty, but he ought to anſwer to the point of the VVrit, that is to ſay, he did not maintaine, ready to Juſtifie, and others to the contrary, 8 H. 6. fol. 36. But by 2 Ed. 4, fol. 16, In maintenance not guilty, is pleaded and allowed.
By Choke, if my Brother or Cozen hath a Suit in the Law and praies me to aid him to learned councell, and I pray a man to be of his Councell, this is a good Plea in maintenance, contrary if a ſtranger do it, but if he gives his own Money for his Brother or Cozen, this is ſpeciall maintenance, 9 Ed. 4. fal. 34. In action upon the Statute of Laborers.
Where Tenant in taile or for life is impleaded, he in remainder or Reverſion may maintaine, and give of his proper Money for ſafegard of his Intereſt, for he which hath Intereſt in the land may maintaine to ſave that, 1 Ed. 6. tit. 53. Maintenance.
It is held a difference between action reall, where land may come to him, and an action perſonall, for he to whom lands may come as by Remainder, Reverſion, Diſcent, and ſuch like, may maintaine in action reall. And by Brian, a man may ſhew to another, who is a man learned in the law for the party to retaine, but he may not give Money to the Counſellor, and one Neighbour may go with another to ſeek Councell, and a man may maintaine his Servan… and give of his wages behinde, and otherwiſe not to give Money, but he may lend to him or another Money, and and that is no maintenance, but he in Reverſion or Remainder, may give money where the land is in queſtion. And the Servant may maintaine his Maſter, as to go and labour for him, but he cannot give of his proper money for him: And ſo it ſeems that he who hath marryed the Daughter of one party, may maintain him in an action Reall, but not in an Action perſonall, 19 Ed. 4. fol. 3. Br.
Upon the Statute of, 32 H. 8. chap. 9. That a man ſhall not buy land, unleſſe the Seller hath been in poſſeſſion by a year before, it was agreed in Sergeants Inne, that if a man Mortgage his Land, and redeeme it, and he ſells it within a yeare after the redemption, that he may doe it without danger of the Statute; for the Statute is to be intended of pretenced title, and not of a cleere title. And the ancient Statutes are that none ſhall maintaine, yet one may maintaine his Cozen, as above, for they are to be intended of unlawfull maintenance, that is, that unlawfully one cannot maintaine, 6 Ed. 6. tit. 38. maintenance.
One skilled in the Law may give evidence for his Fee to the Jury, and tis no Imbracery: But is Imbracery in another, unleſſe he be ſworn, 6 Ed. 4. f. 5.
If Precipe be brought againſt me, and hanging that I infeoff J.S. and the Demandant recovers by default after default, and I bring Writ of deceit, it ſeems J.S. cannot maintaine, for that, that the poſſeſſion which he hath is Champerty and againſt the Law, 8 Ed. 4. fol. 13.
Maintenance, the Defendant juſtifies that he is his Neighbour, and knew no man skild in the Law, and he informed him of one, and a good Juſtification, by which the Plaintiff ſhewed ſpeciall maintenance that is giving Money to the Jurors, 12 Edw. 4. fol. 14. See 19 Edw. 4. fol. 3
Maintenance, the Defendant may plead that he was a Juror, and that is good, without ſaying that he gave Verdict, but if after Verdict given, the Juror praies Judgment, this is maintenance, 18 Ed. 4. fol. 2.
If a Juror give Money to his Companion to paſſe, this is maintenance notwithſtanding that it be for truth: But to perſwade him to paſſe, is no maintenance, 17 Edw. 4. fol. 5.
One may be baile, and that is no maintenance, ſo that he do not meddle more in the matter, 18 Ed 4. fol. 13.
Treſpas of digging land, the Defendant juſtifies, for that that the place where, is their Church-yard, and that the Inhabitants have uſed there to be buried, and for making grave there juſtifies, and field, that all the Inhabitants may maintaine in this action, though they were not parties, 18 Ed. 4. fol. 2. See before, 15 H. 7. fol. 2. That every one that hath lawfull intereſt may maintaine.
Maintenance, ſuppoſing that the Defendant maintained A. in Aſſiſe: The Defendant ſaith that A. held of him by which he came with him to the Aſſiſe, & ſtaid with him, pray'd the Sheriff to make an indifferent pannell, which is the ſame maintenance, and it is a good Plea, 11 H. 6. f. 39.
Generall Attorney which ſues, and is not skilled in the Law, may well meddle, but he cannot proffer Money to a Jury, but may pray them to appeare, 34 H. 6. fol. 27. By Choke.
Maintenance, he cannot juſtifie for that, that he was an Attorney retained with him, and that by commandement of his Maſter he retained Councell, and gave to them forty pence of his Maſters Money, and good
Inquire if an Attorney cannot retaine Councell without the commandement of his Clyent, and if he may not disburſe of his proper Moneys for the time: But Attorney cannot give of his proper Money, nor of his Maſters money to Jurors. 36 H. 6. fol. 29.11 H. 6. fol. 13. the ſame.
Maintenance, the Defendant ſaith that he was an Attorney in the action Judgment if action, and good. But he cannot give any thing to the Jury but as an Attorney, and give Evidence to the Jury for his Clyent he may, 13 H. 4. f. 19.
If a man maintaine a quarrell by his Attorney, action of maintenance lies againſt the Maſter, 22 H. 6. f. 24. And by Newton, If a man of great power in the Countrey, will ſay in the preſence of the people, that he will ſpend twenty pound for one party, or will give twenty pound to labour for the party, though he give nothing, is maintenance, ſee before, 9 H. 7. fol. 18.
Maintenance againſt a Servant of one by Forteſcue, if he meance Jurors to out them of their Tenures, if they do not pa…e with his Maſter, this is ſpecial Maintenance in the Servant, 19 H. 6. f. 30.
A man skilled in Law may do his endeavour for his Client, and it is no maintenance, if the Plaintiff cannot alleadge other ſpecial matter forbidden by the Law, 8 H. 4. f. 6. B.
Embraceor, is he which comes to the Barr with the party, and ſpeaks in the matter, or is there to overlook the Jury, or to put them in feare: but men skilled in Law may ſpeak in the Cauſe, for their Money, but they cannot labour the Jury; and if they take money to do that, they are Embraceors. Fitzh. f. 71. A.