Against Justice

Case Guide

Older Cases Compromise of Criminal Proceedings

 

Agreement not to Prosecute.]—A sum was provided by A. under an agreement, by which it was to be applied in paying the liabilities of B. to a company, with the object on the part of A. of saving B. from a criminal prosecution. The company intended to prosecute, but pending negotiations for the contract counsel advised them that no crime had been committed :-Held, that the agreement was void on three grounds: first, that the company had not disclosed the fact that they had abandoned their intention; secondly, that it was against public policy, as being an agreement to stifle a public prosecution; and thirdly, that it was made under pressure. Davies v. London and Provincial Marine Insurance Co., 47 L. J., Ch. 511; 8 Ch. D. 469; 38 L. T. 478; 26 W. R. 794.

Held, also, that the illegality was not such that (the fund being in medio) the court

would refuse to interfere in favour of A. Ib.

Specific Performance.] A court of equity will not enforce an agreement against a party who was induced to enter into it in order to save his sons from a threatened prosecution for felony. Dewar v. Elliott, 2 L. J. (o.s.) Ch. 178.

A bill in equity lies not to compel a specific performance of an agreement to pay money in consideration of having stifled prosecution for felony. Secus, if to stop a prosecution at law for a fraud. Johnson v. Ogilby, 3 P. W. 279.

Withdrawal from Prosecution.]-An agreement by a wife to waive the further prosecution of an indictment against her husband for an assault, in consideration of his allowing her an annuity by way of separate maintenance, is an illegal contract, though entered into with the sanction of the court in which the indictment is tried. Garth v. Earnshaw, 3 Y. & C. 584.

A petition having been presented to the House of Commons against the return of a member, on the ground of bribery, the petitioner entered into an agreement, in consideration of a sum of money, and upon other terms, to proceed no further with the petition: -Held, that this agreement was illegal. Coppock v. Bower, 4 M. & W. 361; 8 L. J., Ex. 9.

In consideration of Money Paid.]—A banking company commenced a prosecution against a customer for having obtained credit from them under false pretences, which is by s. 13 of the Debtors Act, 1869, made a misdemeanour. At this time the bank had notice of an act of bankruptcy committed by the customer. On the day on which the summons was to be heard by the magistrate, H. signed an undertaking that, if the magistrate would allow the summons to be withdrawn, he would pay the bank the sum which the customer had obtained by false pretences. An application was made to the magistrate by the customer’s solicitor to allow the summons to be withdrawn. The application was assented to by the bank’s solicitor, and granted by the magistrate. H. then paid the money to the bank. The bank manager believed that H. was paying the money out of his own pocket. The customer was soon after adjudicated a bankrupt, upon the act of bankruptcy of which the bank had notice. The trustee in the bankruptcy discovered that the money which handed to him by the bankrupt’s wife, she H. had paid to the bank had been previously having, with the bankrupt’s knowledge, taken it for the purpose of paying the bank out of a bag of money belonging to the bankrupt : -Held, that the consideration for the payment to the bank being the stifling of a prosecution, there was no legal consideration, and that, though H., being in pari delicto; could not have recovered the money from the bank, the trustee, to whom by virtue of the relation back of his title to the act of bankruptcy, the money really belonged, could recover it. Caldecott, Ex p. (4 Ch. D. 150), distinguished. Wolverhampton Banking Co., Ex p., Campbell, In re, 14 Q. B. D. 32.

In consideration of Deposit of Deeds.] B. on the charge of having committed the -A. having been arrested at the instance of offence of larceny by a bailee, was brought up before a magistrate and remanded. A.’s wife then induced B. to withdraw from the prosecution on A.’s wife agreeing to charge her separate real estate with the amount taken. The title deeds of the property were deposited at a bank in the joint names of the solicitors of the parties. A. being again brought before the magistrates, the latter, having been informed of the terms, allowed the prosecution to be withdrawn. A.’s wife afterwards refused to perform her agreement. B. brought an action to enforce the charge, and A.’s wife counter-claimed for a declaration that she was entitled to have the deeds delivered up to her : -Held, that the agreement to charge the separate property was illegal and could not be enforced, and that the defendant was entitled to the declaration for delivery of the deeds. Larceny by a bailee is a felony, but, if it had been a misdemeanour, the agreement to charge in consideration of the withdrawal of the prosecution would have been void. Whitmore v. Farley, 45 L. T. 99; 29 W. R. 825; 14 Cox, C. C. 617-C. A.

In Consideration of Staying Civil Action.]-An agreement to withdraw from a prosecution for felony, provided the person accused will promise to bring no action for trespass and false imprisonment or for malicious prosecution, is void, and cannot be enforced; and if the person accused subsequently sues the prosecutor, the action will not be stayed upon the ground that it is brought against good faith. Rawlings v. Coal Consumers’ Association, 43 L. J., M. C. 111; 30 L. T. 469; 22 W. R. 704.

In an action against magistrates for trespass and false imprisonment, they pleaded a charge preferred before them for an offence against 1 Will. & M. c. 18, s. 18, in disturb. ing a dissenting congregation, and a commitment for want of sureties under it to the next sessions; and that before the next sessions, it was agreed between the prosecutor and the plaintiff, with the consent of the magistrates, that the prosecution should be dropped, and the plaintiff be discharged at the sessions for want of prosecution; and that the plaintiff was accordingly then and there 80 discharged, in full satisfaction and discharge of the assault and imprisonment Held, that this was no legal satisfaction; for either the agreement was illegal, as stifling a prosecution for a public misdemeanour, and thereby impeding the course of justice, or the satisfaction, if any, was moving from the prosecutor only, and not from the justices; their authority over the prosecution being at an end after the commitment of the plaintiff, and their consent afterwards to the prosecutor dropping the prosecution being a nullity, and no satisfaction for a prior injury, if any, received by the plaintiff from their act. Edgecombe v. Rodd, 5 East, 294; 1 Smith, 515; 7 R. R. 700.

Inference as to Consideration.]-Where the treasurer of a friendly society had embezzled the funds, and the trustees agreed to take a bond and a sum of money to forgo a criminal prosecution against him, the bond declared illegal in an action thereon. Cannon v. Rands, 23 L. T. 817; 11 Cox, C. C. 631. An agreement to abstain from instituting a threatened prosecution for a criminal offence is not illegal, unless there are reasonable grounds for believing that the alleged offence has been actually committed, or unless each party entered into the agreement on that assumption. Ib.

802. and his son had each separate banking accounts with W., and dealt with each other. The son being in difficulties, paid into his account numerous bills and notes purporting to bear his father’s signature. B., being informed of this, went with his son to the bank, when the son admitted he had forged his father’s signature. The banker then hinted that if it could be arranged he would not exercise pressure. Thereupon B., to save his son from being prosecuted, and not being in any way civilly liable on the bills, agreed to give securities over his own estate for the amount of those bills, and gave them accordingly to the banker :-Held, that the reasonable inference being that the basis of the agreement was the stifling of a prosecution, B. was entitled to a decree ordering the securities to be given up to be cancelled. Williams v. Bayley, 35 L. J., Ch. 717; L. R. 1 H. L. 200; 12 Jur. (N.s.) 875; 14 L. T. 802.

Such an agreement would not have been legal even if the banker had proposed it. Ib.

A court of equity will set aside any agreement having for its object the stifling of a criminal prosecution. Ib.

The court will not set aside a warrant of attorney given to secure a debt, on the ground that it was obtained by a threat of prosecution for felony, unless it distinctly appears that there was an agreement, either express or necessarily implied, to abstain from prosecuting upon the security being given. Ward v. Lloyd, 6 Man. & G. 785; 7 Scott (N.R.) 449; 13 L. J., C. P. 5.

In order to render illegal the receipt of securities by a creditor from his debtor, where the debt has been contracted under circumstances which might render the debtor liable to criminal proceedings, it is not enough to show that the creditor was thereby induced to abstain from prosecuting. Following Ward v. Lloyd, supra. Flower v. Sadler, 9 Q. B. D. 83; 46 J. P. 503. Affirmed, 10 Q. B. D. 572-C. A.

A clerk having robbed his employers of money, gave them, upon the discovery of his frauds and before his prosecution, an equitable security on policies and lands for the amount. He was afterwards prosecuted and convicted : -Held, that the debt was a good consideration for the securities, and that they were valid. Chowne v. Baylis, 31 Beav. 351.

Semble, that where the consideration for a contract is an agreement not to prosecute, it does not follow as a necessary inference of fact that there is such pressure or undue influence on the party to whom the consideration moves as to entitle him to equitable relief. Jones v. Merionethshire Permanent [1892] 1 Ch. 173; 65 L. T. 685; 40 W. R. Benefit Building Society, 61 L. J., Ch. 138; 273; 17 Cox, C. C. 389. Cp. McClatchie v. Haslam, 65 L. T. 691; 17 Cox, C. C. 402.

Misdemeanour.]-It is not illegal to compromise indictments for misdemeanours. Elworthy v. Bird, 9 Moore, 430; 2 Bing. 258; 13 Price, 222; 2 Sim. & S. 372; 3 L. J. (o.s.) C. P. 260.

Secus, as to indictments for felony. Ib. See Whitmore v. Farley, supra.

A party who has been defrauded of goods by the apprentice of another may legally  agree not to proceed against the master who has received the goods at an under price. Drage v. Ibberson, 2 Esp. 643.

Where Offence subject of Civil Action.]— The law permits the compromise of offences (although made the subject of criminal prosecution), for which the injured party might sue and recover damages in an action; but no agreement can be valid which is founded upon the consideration of stifling an offence of a public nature. Keir v. Leeman, 6 Q. B. 308; 13 L. J., Q. B. 259; 8 Jur. 824. S. C., affirmed in error, 9 Q. B. 371; 15 L. J., Q. B. 359; 10 Jur. 742-Ex. Ch.

At the trial of the defendants on the prosecution of the plaintiffs for obstructing a highway, an agreement was entered into between the parties, with the approval of the court, that the defendants should restore the highway, and that in the meantime the indictment should lie in the office, and that on the fulfilment of the agreement the plaintiffs should consent to an acquittal. In pursuance of this agreement the defendants covenanted to restore the highway :-Held, that the covenant was founded on an illegal consideration, and was void. Keir v. Leeman, supra, followed and approved. Dictum of James, L.J., in Fisher v. Apollinaris Co., infra, not followed. Windhill Local Board v. Vint, 59 L. J., Ch. 608; 45 Ch. D. 351; 63 L. T. 366; 38 W. R. 738-C. A. Affirming, 17 Cox, C. C. 41.

When an offence is of such a nature that the person injured may obtain either a civil or a criminal remedy, there is nothing unlawful in a compromise of criminal proceedings taken against the offender. Fisher v. Apollinaris Co., 44 L. J., Ch. 500; L. R. 10 Ch. 297; 32 L. T. 628; 23 W. R. 460.

Action for malicious prosecution, obstruction of a right of way, and stopping a public footpath, whereby the public was forced to pass over the plaintiff’s lands. Plea, that after the grievances a consent was entered into between the plaintiff and defendant that all actions and suits pending at the suit of the defendant or of the Queen, against the plaintiff, should be stopped and abandoned by the defendant, and that no rule should be made on a motion for a certiorari then pending, and that the defendant should pay all costs; and that the plaintiff agreed to accept such consent and the signing thereof in full satisfaction of the causes of action to which the plea was pleaded, and that the consent was duly made and signed by the defendant, and so accepted by the plaintiff. Replication, that one of the actions and suits in the consent mentioned was an indictment preferred at the suit of the Queen by the defendant against the plaintiff, and duly found a true bill by the grand jury for obstructing a public footway, and that at the time of making the consent the bill was still pending, and the plaintiff was not discharged for the same, and that by reason thereof the consent was illegal and void. Rejoinder, that the consent was made a rule of court-Held, that there was no fact shewn on the pleadings which rendered this consent void as an agreement to stifle a public prosecution. Crooke v. Powerscourt (Lord), 16 W. R. 969.

A bond conditioned (on the obligee’s agreeing not to prosecute) to remove certain public nuisances, and not erect any others of the Term Rep. 475; Peake Ad. C. 155. same kind, is good. Fallowes v. Taylor, 7

Claim arising out of Felony-Whether Debt provable in Bankruptcy.]-Bankers allowed a customer to overdraw his current account on his depositing with them as security for the overdraft some bills of exchange drawn by him upon, and purporting to be accepted by, a third person. After the customer had’ overdrawn his account the bankers discovered that the acceptances were forgeries. They then communicated with the customer, and ultimately gave up the forged acceptances to him, receiving from him in exchange joint and several promissory notes of himself and his father. The customer was afterwards adjudicated a bankrupt. The notes were not paid at maturity :-Held, that, though the bankers had not prosecuted the bankrupt for the felony, and whether they had or had not agreed not to prosecute him, they were entitled to prove in the bankruptcy for the balance due to them upon the bankrupt’s current account. Leslie, Ex p., Guerrier, In re, 51 L. J., Ch. 689; 20 Ch. D. 131; 46 L. T. 548; 30 W. R. 344-C. A.

Consent of Judge.]-Where an offence was not confined to a personal injury, but was accompanied with riot, and the obstruction of a public officer in the execution of his duty; an agreement by the prosecutor to compromise the matter, and forgo the prosecution, is invalid, even though made with the knowledge and consent of the judge. Keir v. Leeman, supra.

A promissory note given by a defendant in prison after conviction for a misdemeanour, and before sentence, in pursuance of a recommendation of the court to compromise, is valid; although the court is not apprised of the terms of the compromise, and although the costs of the prosecution are included in the note. Kirk v. Strickwood, 1 N. & M. 275; 4 B. & Ad. 421; 2 L. J., M. C. 43.

Securities for-Bond.]-A bond given by way of indemnity, to one who had given his note to a prosecutor on an indictment for perjury, to induce him to withhold his evidence, is void ab initio. Collins v. Blantern, 2 Wils. 341, 347.

Any contract having a tendency, however slight, to affect the administration of justice is illegal and void. The consideration of a bond was expressed to be that the obligor was to be free from any legal proceedings or other consequences for having introduced the obligee to C., through whom the obligee had lost money-Held, on the evidence, that the consideration included promises that criminal proceedings should be commenced against the obligor, and that certain criminal proceedings then pending against C. should be so conducted that the name of the obligor should not be mentioned, or should be mentioned in such a way as not to damage him; that the consideration was partly illegal as tending to affect the course of justice; and that there was no good consideration for the bond. Lound v. Grimwade, 57 L. J., Ch. 725; 39 Ch. D. 605; 59 L. T. 168.

Warrant of Attorney.] — A warrant of attorney, given by an attorney to induce a party to stay proceedings against him on a rule, is illegal and void, and the court will direct it to be taken off the file of the court and cancelled. Kirwan V. Goodman, 9 D. P. C. 330; 5 Jur. 293. S. P., Pool v. Bousfield, 1 Camp. 55; 10 R. R. 633.

A preferred a charge of embezzlement against B., the investigation of which was several times adjourned, the magistrate on each occasion expressing a strong opinion that the prosecution could not be sustained, as the evidence seemed to establish the existence of a partnership between the prosecutor and B. Previously to the final adjudication of the matter by the magistrate, a warrant of attorney was given to the prosecutor, to secure the payment to him of the sum due from B.; and at the next meeting before the magistrate, upon the prosecutor, by his attorney, stating that he was advised by counsel that he could not substantiate the charge, B. was forthwith dismissed-Held, that the warrant of attorney was void, as having been given on an illegal consideration. Critchley, Ex p., 1 B. C. Rep. 7; 3 D. & L. 527; 15 L. J., Q. B. 124; 10 Jur. 112.

In an application to set aside a warrant of attorney given by a collector who had received moneys and failed to account for them, evidence was given that when the defalcations were first discovered, the collector’s principal threatened to prosecute him for unlawfully making use of his money, and the collector thereupon gave the security in question, and no prosecution followed-Held, that the warrant of attorney was not given for an illegal consideration. Ward v. Lloyd, 6 Man. & G. 785; 7 Scott (N.R.) 449.

Promissory Note.]-Promissory notes, delivered by one person to another, to induce the latter to forgo prosecuting him for cheating at cards, will be decreed to be delivered up, because it would be extremely dangerous to allow a party to be a judge in his own cause, and to determine in his own favour what amount of penalty ought to be paid for a breach of the law committed by another person, notwithstanding he may have suffered by it. Osbaldiston v. Simpson, 13 Sim. 513; 7 Jur. 736.

The respondents gave a written undertaking to the appellant society to make good part of a debt arising from the criminal default of the secretary of the society, the consideration expressed being that the society should not sue the secretary to recover that part of the debt. The society had threatened to prosecute the secretary, and, though the question of their doing so was not mentioned in the negotiations which led to the undertaking, the respondents had heard of the threat, and in giving the undertaking were, as was well known to the directors of the society, actuated by a desire to prevent a prosecution :—Held, that it was a term of the true agreement between the parties that there should be no prosecution; that the consideration for such agreement was illegal; and that certain promissory notes given in pursuance of the undertaking could not be enforced by the society. Jones v. Merionethshire Permanent Benefit Building Society, 61 L. J., Ch. 138; [1892] 1 Ch. 173; 65 L. T. 685; 40 W. R. 273; 17 Cox, C. C. 389-C. A.

Bill of Exchange.]—An agreement to forgo a criminal prosecution is illegal, but the plaintiff may recover on a bill of exchange given by the defendant for the costs of a civil proceeding against a third person, and the amount of a composition with him, although the plaintiff has instituted a prosecution against such third person, which he afterwards abandoned, unless the abandonment of the prosecution formed part of the consideration of the bill. Harding v. Cooper, 1 Stark. 467.

In an action on a bill of exchange by the drawer against the acceptor, the defendant tion for the bill was the discontinuance by pleaded, in substance, that the only considerathe drawer of certain proceedings by civil bill, and his forbearing to commence a prosecution for an alleged forgery against a third person which he had threatened to institute :-Held, on demurrer, that the agreement to abstain from instituting the prosecution, though in itself an insufficient consideration for the bill, was not shewn by the defence to be an illegal agreement, and therefore did not avoid the contract of the acceptor, for which the abandonment of the civil bill proceedings consideration. Rourke v. Mealy, 4 L. R., would otherwise afford an admittedly valid Ir.

166.

Forged Indorsement, Ratification of.] -The defendant’s name was forged, by one Jones, to a joint and several note for £20, dated November 7, 1869, and purporting to be made in favour of the plaintiff, by the defendant and Jones. While the note was current the defendant signed the following memorandum, in order to prevent the prosecution of the forger, at the same time denying that the signature to the note was his or written by his authority :-” I hold myself responsible for a bill dated the 7th of November, 1869, for £20, bearing my signature and Richard Jones’, in favour of Mr. Brook.” At the trial of an action against the defendant on the note, the judge ruled that this memorandum was a ratification, and directed the jury that the only question for them was whether the defendant signed it. It being admitted that he did, a verdict was entered sentiente), a misdirection :-Per Kelly, C.B., Channell and Pigott, B.B., Martin, B., dissentiente), a misdirection :-Per Kelly, C.B., Channell and Pigott, B.B., that the memorandum could not be construed as a ratification, inasmuch as the act it professed to ratify was illegal and void and incapable of ratification, but that it was, in fact, an agree ment by the defendant to treat the note as his own in consideration that the plaintiff would forbear to prosecute Jones, and was therefore void as founded on an illegal consideration. Brook v. Hook, 40 L. J., Ex. 50; L. R. 6 Ex. 89; 24 L. T. 34; 19 W. R. 508. Compare M’Kenzie v. British Linen Co., 6 App. Cas. 82; 44 L. T. 431; 29 W. R. 477 -H. L. (Sc.)

A

For Expenses of Prosecution.] security for the fair expenses of the prosecu. tion, agreed to be given, at the recommendation of the court of quarter sessions, by a party who stood convicted before them of a misdemeanour, in illtreating his parish apprentice, for which the parish officers had been bound over by recognisance to prosecute him under 32 Geo. 3, c. 57, and the giving of which security was considered by the court in abatement of the period of imprisonment to which he would otherwise have been sentenced, is legal. Beeley v. Wingfield, 11 East, 46; 10 R. R. 431.

Postponement of Trial.]-There is objection to the legality of an agreement to pay money in consideration of putting off the trial of an indictment. Harvey v. Morgan, 2 Stark. 17.

Recovery back of Money paid.]—A person who has voluntarily offered to pay a sum of money for the use of the poor of the parish, in order to avoid a prosecution by a magistrate upon a charge of having instigated an escape, which offer was consented to by the magistrate, and the money accordingly paid by the party to the master of the workhouse for the use of the poor, may, at any rate, countermand the application of the money before it is so applied, and recover it back. Taylor v. Lenday, 9 East, 49.

Action for Damages.]-One of two parties to an agreement to suppress a prosecution for a felony cannot maintain an action against the other for an injury arising out of the transaction, in which they have both been illegally engaged. Fivaz v. Nicholls, 2 C. B. 501; 15 L. J., C. P. 125; 10 Jur. 50.

Guardians of a poor-law union indicted a party for disobeying an order of sessions for maintenance of a bastard. Before trial, he offered a compromise; and the clerk to the guardians, on their behalf, agreed with him for a sum on account of costs and maintenance, which he paid; and the indictment was dropped. Afterwards, he discovered that the order of sessions was defective and void, and he brought an action for money had and received against the clerk :-Held, that the clerk was not liable, having done nothing in the prosecution beyond preferring the indictment. Goodall v. Lowndes, 6 Q. B. 464; 9 Jur. 177.

If the compromise was illegal, the party, being in pari delicto with the other parties offending, could not sue them for money which he had paid. Ib.

Discovery.]-Transfer of stock under an agreement to satisfy the deficiency in the amount of a banker’s clerk, though he is not a party, amounts to a composition of felony, to prevent a prosecution. Defendant, therefore may protect himself by plea from

discovering not only the broad leading fact, but any fact, the answers to which may form a step in the prosecution. Claridge v. Hoare, 14 Ves. 59.

Older Cases Champerty

Not amounting to Punishable Offence.]-In order to render an agreement void on the ground that it is in the nature of champerty, it is not necessary that it should amount strictly to champerty as a punishable offence. Rees v. De Bernardy, 65 L. J., Ch. 656; [1896] 2 Ch. 437; 74 L. T. 585.

An agreement may amount to champerty or maintenance, or savour of champerty, though made between persons not standing in the relation of solicitor and client or in any analogous relation, and such an agreement, if not amounting strictly to champerty or maintenance so as to constitute a punishable offence, may still be against the policy of the law and mischievous, and such as a court of equity ought to discourage and relieve against. Reynell v. Sprye, 8 Hare, 274. Affirmed 1 De G. M. & G. 660; 21 L. J., Ch. 633.

Not Applying to Criminal Proceedings.]-The doctrine as to maintenance of civil suits is not applicable to criminal proceedings. Bradlaugh v. New digate (11 Q. B. D. 1) commented on. Grant v. Thompson, 15 R. 290; 72 L. T. 264; 43 W. R. 446; 18 Cox, C. C. 100.

Not applying to India.]-C., as attorney and mooktear of M. and his wife, managed actions of ejectment and mesne profits against R., advanced moneys for that purpose, and for the subsistence of his clients, having stipulated that he should be repaid all advances with interest at 12 per cent., and should have a third part of the clear net profits of the suit, with a right to possession of the land recovered as security therefor. He was neither an original nor an added party to the suits, which, on appeal, were decreed in favour of M. and his wife by the High Court in India, but were afterwards dismissed by the Privy Council with costs, which M. and his wife were utterly unable to pay. Pending that appeal, C. purchased the property in suit, and thereafter conducted the appeal in his own interest. In an action by R. against C. to recover the amount of the costs, it was averred, but not proved, that the actions were brought or instigated by C. maliciously and without probable cause; and, failing such proof, it was contended, that the agreement and acts of C. amounted to champerty, or were otherwise illegal as being against public policy, and that R. had suffered special damage from them; that C. was the real actor therein, and had an interest in them, and was, therefore, responsible for the costs :-Held, that the English laws of maintenance and champerty are not of force as specific laws in India. Ram Coomar Coondoo V. Chunder Canto Mookerjee, 2 App. Cas. 186-P. C.

Such agreement created no legal privity between R. and C. from which a promise can be implied on the part of R. to pay C. his costs of the former action, on which an action of contract can be founded; nor does it establish a legal wrong, for the former action was brought without improper motives, and upon reasonable cause. Ib.

Agreement made Abroad.]—An agreement (to be carried into effect in this country) which would be void on the ground of champerty, if made in this country, is not the less void because made in a foreign country where such a contract would be legal. Grell v. Levey, 16 C. B. (N.s.) 73; 10 Jur. (N.S.) 210; 9 L. T. 721; 12 W. R. 378.

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 in this country, whereby the attorney was to receive by way of recompense a moiety of the amount recovered :-Held, that the agreement being void for champerty, the attorney was remitted to his ordinary retainer as an attorney, and, the work having been done and the client having received the benefit of it, was entitled to his costs as between attorney and client. Ib.

Interest makes Maintenance lawful.]-The maintenance of the suit of another is lawful where the persons maintaining have an interest in the subject-matter of the action. Guy v. Churchill, 58 L. J., Ch. 345; 40 Ch. D. 481; 60 L. T. 473; 37 W. R. 504.

Erroneous Belief.]-The essence of the common law offence of maintenance consists in the criminal intention with which the act is done; so that when several persons, against all of whom a general claim is put forward by a third party, enter into an agreement to uphold each other in resisting that claim, it is not an act of maintenance if they did so under the bona fide, though erroneous, belief, that they were uniting in the defence of a common interest. Findon v. Parker, 11 M. & W. 975; 12 L. J., Ex. 444; 7 Jur. 903.

To an action for maintenance it is a good defence that the defendant assisted the third person from charitable motives, believing that he was a poor man oppressed by a rich man. It is not necessary that the defendant should have acted after full inquiry into the circumstances, but the defence will be equally available even if the defendant, had he made full inquiry, would have ascertained that there was no reasonable or probable ground for the proceedings which he assisted. Harris v. Briscoe, 55 L. J., Q. B. 423; 17 Q. B. D. 504; 55 L. T. 14; 34 W. R. 729-C. A.

What is Common Interest.]-The plaintiff having sat and voted as a Member of Parliament without having made and subscribed the oath appointed by s. 5 of 29 & 30 Vict. c. 19, the defendant, who was also a Member of Parliament, procured C. to sue the plaintiff for the penalty imposed by that section for contravention thereof. C. was a person of insufficient means to pay the costs in the event of the action being unsuccessful. After the commencement of the action the defendant gave to C. a bond of indemnity against all costs and expenses he might incur in consequence of the action. It was ultimately decided in

the House of Lords that the above mentioned section does not enable a common informer to sue for the penalty, and that therefore the action would not lie. The plaintiff brought an action for maintenance against the defendant :-Held, that the defendant and C. had no common interest in the result of the action for the penalty; that the conduct of the defendant in respect of such action amounted to maintenance and that the action for maintenance was therefore maintainable. Bradlaugh v. Newdigate, 52 L. J., Q. B. 454; 11 Q. B. D. 1; 31 W. R. 792.

Persons having a common interest may agree to unite in a defence, but the agreement must not go beyond the common object, and therefore an agreement by several owners and occupiers of land in a parish, to concur in defending any suits that may be commenced against any of them by the present or any future rector for the tithes of articles covered by certain specified moduses, binding themselves not to compromise or settle, and not limited to their continuance in the parish, or to any particular time, is illegal. Stone v. Yea, Jac. 426.

1. being interested in the success of certain electrical appliances employed T. to write a report upon them. A. published an article in which H., T. and the appliances themselves were attacked. At the instigation of H., who paid the expenses, T. brought an action for libel against A. :-Held, that there was no such community of interest between T. and H. as to be an answer to an action for maintenance brought by A. against H. Alabaster v. Harness 64 L. J., Q. B. 76; [1895] 1 Q. B. 339; 14 R. 54; 71 L. T. 740; 43 W. R. 196 -C. A.

The common title of tenants in common, or the relation of heir-presumptive, justifies maintenance; but the principle of that is, that one may aid another suit in consideration of his own collateral or derivative interest, as the heir may aid the ancestor, by reason of his chance of taking by descent. But where the party comes in order to obtain the benefit of the matter in contest with another directly for himself, this court will not entertain it. Byrne v. Frere, 2 Moll. 157.

A person interested in the premises (as a mortgagee), though he be no party to the suit, may expend money in supporting the title without being guilty of maintenance. Sharp v. Carter, 3 P. W. 378.

Several suits at law and in equity to determine the title to certain lands were pending such lands and one who claimed the same between persons claiming to be mortgagees of lands in fee by title under a settlement paraclaiming to be a subsequent mortgagee of the mount to the mortgagee. The plaintiff, of the prior mortgagees in their principal same lands, contracted to purchase the interest moneys, arrears of interest and securities, and to pay the purchase money at certain stipulated times, all of which except an annuity were to be paid in 1843, and to pay and indemnify the prior mortgagees against the past and future costs of the suits and proceedings; and time was to be of the essence of the contract. The plaintiff did not pay the instalments until a considerable time after the stipulated period, but such later payments were accepted by the vendors. The bill filed in 1845 (when some of the payments still remained to be made) alleged that the defendants refused to perform the agreement, and prayed a specific performance :-Held, on demurrer, that the plaintiff being interested as second mortgagee in the subject of the suits, the contract was not to be deemed champerty. Hunter v. Daniel, 4 Hare, 420; 14 L. J., Ch. 194; 9 Jur. 526.

Maintenance justifiable from the privity of the parties in estate, or their connection as master and servant. Wallis v. Portland (Duke), 3 Ves. 494; 4 R. R. 78. Affirmed 8 Bro. P. C. 161.

A secretary of a company was prosecuted by a shareholder for issuing in his capacity as secretary a false balance sheet. The prosecution failed, and the secretary was maintained in an action for malicious prosecution against the shareholder (in which he obtained a verdict for £50 damages), by a resolution of the directors authorising the secretary to instruct the company’s solicitor to take such proceedings, at the company’s expense, with reference to the prosecution as they might be advised. It was admitted that the fact of the maintenance, though known to the parties in the action, would not have been a good plea. The court refused, at the suit of the shareholder, to restrain the taxation of costs and subsequent proceedings in the action, and left the question of maintenance to be dealt with by the court of law. Elborough v. Ayres, 39 L. J., Ch. 601; L. R. 10 Eq. 367; 23 L. T. 68; 18 W. R. 913.

A landlord may assist his tenant in resisting a claim of tithes in kind, without rendering himself guilty of maintenance. Findon v. Parker, 11 M. & W. 975; 12 L. J., Ex. 444; 7 Jur. 903.

If a man walking in the street were to see a poor person very much oppressed and abused, and without any power of redress, and were to furnish that poor person with money to enable him to procure the assistance of an attorney, in order to have his wrongs righted, and doing so without any intention of oppressing others, or stirring up litigation, he would not be guilty of maintenance. Ib.

It is a good defence to an action for maintenance that the defendant assisted a third person from charitable motives, believing that he was a poor man oppressed by a rich man. Harris v. Briscoe, 55 L. J., Q. B. 423; 17 Q. B. D. 504; 55 L. T. 14; 34 W. R. 729C. A.

Relationship.]-A. provided a fund for defraying the expenses of obtaining an Act of Parliament, to dissolve the marriage of B. and C., who was A.’s illegitimate daughter :Held, that the transaction was not illegal. Moore v. Usher, 7 Sim. 384; 4 L. J., Ch. 205. A bill to enforce a title acquired by a conveyance from a person out of possession, in consideration of money advanced, and to be advanced on suits respecting the recovery of the estate, dismissed, being a case of clear and distinct maintenance, although grantor and grantee were first cousins. Burke v. Greene, 2 Ball & B. 517.

Advancing money to support and carry on another person’s suit, except by a father or son, or heir apparent to the party or the husband of an heiress, is maintenance. Ib. The fact that the plaintiff was a relation of the defendant and had some collaterad interest in the suit, does not prevent a contract by which he is to receive half of what the defendant recovered, from being champertous. Hutley v. Hutley, 42 L. J., Q. B. 52; L. R. 8 Q. B. 112; 28 L. T. 63; 21 W. R. 479.

Indemnities against Costs.]-It is not maintenance to purchase an interest which is the subject of a suit; but if the purchaser gives an indemnity against all the costs that have been or may be incurred by the seller in the prosecution of the suit, the transaction amounts to maintenance. Harrington v. Long, 2 Mylne & K. 590.

A contract by T., a clerk in holy orders, to indemnify W., who claimed the right of presentation to a living, against the costs of a litigation to establish that right, provided that W., in case of success, should present T. to the living, is a corrupt agreement, and cannot be enforced. Semble, it partakes both of the nature of champerty and maintenance. Littledale v. Thompson, 4 L. R., Ir. 43.

A declaration alleged that the plaintiffs, who were the proprietors of a newspaper, at the solicitation and request of the defendant, published a statement therein; that C. brought an action against them for the publication, as being a libel on him; and that the defendant, in consideration of the premises, and that the plaintiffs would defend the action, promised to indemnify them :-Held, that the consideration was entire and illegal, and if the former part of the consideration was rejected as surplusage, the defendant would be guilty of maintenance, as having interfered to support an action to which he was a stranger. Shackell v. Rosier, 2 Bing. (N.c.) 634; 3 Scott, 59; 5 L. J., C. P. 193.

A count alleging that the plaintiff, at the request of the defendant, and upon the defendant’s undertaking to indemnify, defended an action for the recovery of money, in which the

defendant claimed an interest; that judgment was given against the plaintiff for £42; and that he was imprisoned and paid the money under a ca. sa. does not disclose a contract which is void on account of maintenance. Williamson v. Henley, 6 Bing. 299; 3 M. & P. 731.

Assignment to navy agents of part of the subject of a prize suit then depending void, amounting to champerty, viz., the unlawful maintenance of a suit in consideration of a bargain for part of the thing, or some profit out of it, which is not confined to courts of common law. Stevens v. Bagwell, 15 Ves. 139; 10 R. R. 46.

One of three annuities secured on land, and a share of another of them were, pending a suit in which the title to them was in litigation, purchased in the name of A. A. by the deed transferring them to him, covenanted to indemnify the vendors against past and future costs; and at the time he executed a declaration of trust, shewing that the purchase was made principally on behalf of the solicitors who acted in the suit for the parties entitled to the residue of the three annuities, but were not the solicitors of the vendors :-Held, that the purchase was not affected by the laws relating to champerty and maintenance, and that even assuming it to be voidable as between the vendors and purchasers, the objection could not be taken by third parties. Knight v. Bowyer, 2 De G. & J. 421; 27 L. J., Ch. 521; 4 Jur. (N.S.) 569; 6 W. R. 565.

A party agreed with a solicitor to give him a portion of the profits arising from the successful prosecution of a suit to establish his right to certain coal mines, upon being indemnified against the costs of the proceedings :-Held, that the contract amounted to champerty and maintenance, but the party was not disqualified from suing, since his title was vested in him before he entered into the illegal contract. Hilton v. Woods, 36 L. J., Ch. 491; L. R. 4 Eq. 432; 16 L. T. 736; 15 W. R. 1105.

If, however, the solicitor had been the party suing by virtue of a title derived under such a contract, his bill would have been dismissed. Ib.

An attorney agreeing to save a party harmless from all costs of some suits, on his being allowed to retain half of whatever sums are recovered, amounts to maintenance, and is illegal. Masters, In re, 1 H. & W. 348.

Solicitor and Client.]-Beneficial contracts and conveyances, obtained by an attorney from his client during their relation, as such, and connected with the subject of the suit, being also liable to the charge of champerty, decreed to stand as a security only for what was actually due; and purchases by the attorney declared a trust. A subsequent deed, not relating to separate, independent, voluntary transaction, but under the same pressure, and called for under the covenant for further insurance, no confirmation. Wood v. Downes, 18 Ves. 120; 11 R. R. 160.

A., entitled to an estate, gave a bond to his counsellor B., to give him half of it if he recovered. The bond is void, and B. shall only recover his reasonable charges. Skapholme v. Hort, Ca. t. Finch, 477.

M., in the year 1805, filed his bill against J. C., impeaching various proceedings, and praying, that certain conveyances, mortgages and bonds should be set aside, or stand as securities only for so much as on taking an account should be found to be fairly due and owing. These proceedings having been carried on for many years, without any decree having been pronounced, W. M. died, having by his will bequeathed all his estate, real and personal, save his estate in the county of T., to his wife, M. M., for life, with remainder to her brother in fee; and as to his estate in the county of T. he devised it to A. B., a solicitor, on condition of his releasing all his claims under a deed of March, 1828, whereby certain valuable properties had been conveyed by him to A. B. By deed of March, 1832, made between A. B. and M. M., the widow, and her brother, reciting the above facts, and that in order to avoid litigation and expense in the establishment of their rights under the deed of March, 1828, and the will of W. M., and for the purposes of forwarding the prosecution of the said suit then pending for the recovery of the estate and property of W. M., and for the purposes of determining all questions and differences existing between the said parties, they had agreed, in case of the suit being effectual, to divide between them the whole of such estate and property, &c., the estates were conveyed to M. M. and her brother, upon trust to carry on the suit, upon the determination thereof to assign one moiety thereof to A. B., and in the meantime to be trustees as to the moiety of A. B.; and the deed contained a covenant on the part of A. B., that he would give his full and active personal aid and assistance in all matters relating to the suit. A bill of revivor and supplement having been subsequently filed by the widow, M. M., and her brother against the original defendant J. C., A. B. and others : -Held, that the contract under the decree of March, 1832, amounted to champerty, and the bill was upon that ground dismissed with costs. Moore v. Creed, 1 Dr. & Wal. 521.

A conveyance by a client to a solicitor, part of the consideration for which is a sum of money fixed upon as the costs to be incurred in a suit to be undertaken, will not be allowed to stand. Semble, such a contract is maintenance. Uppington v. Bullen, 1 Con. & L. 291; 2 Dr. & War. 184.

Agreements entered into between an attorney and his client for the purchase by the attorney, at an under price, of estates to which the client had good title, but of which he was not in possession, set aside for fraud and maintenance.

Jones v. Thomas, 2 Y. & Coll. 498.

On an application at the instance of a taxing master for the opinion of the judge under the Attorneys and Solicitors Act, 1870, as to the reasonableness of an agreement between a firm of solicitors and their clients, whereby the solicitors were to receive a percentage of £10, plus their ordinary charges, on the property to be recovered in an intended action, and in case no property should be recovered then only costs out of pocket with

interest thereon; the court referred to s. 11, and intimated its opinion that the agreement clear champerty. Anon, 45 L. J., Ch. 47; 1 Ch. D. 573; 24 W. R. 38.

A lady resident in Ireland agreed with an Irish solicitor, that, if he would employ a solicitor in London to take out for her letters of administration in England, which were necessary to complete her title to a fund in the Court of Chancery in England, and afterwards procure the fund for her, he should receive a commissior. of £10 per cent. upon the amount of the fund, and also be reimbursed what he should pay to the London solicitor :Held, that the agreement was contrary to policy, and, therefore, could not be enforced. Strange v. Brennan, 15 Sim. 346. Affirmed 649. 2 Coop. C. C. 1; 15 L. J., Ch. 389; 10 Jur.

A contract whereby an attorney stipulates with a client to receive, in consideration of the advances requisite to the conducting the proceedings to a successful issue, over and above his legal costs and charges, a sum which should be commensurate with his outlay and exertions, and with the benefit resulting to the client, is void on the ground of maintenance. Earle v. Hopwood, 9 C. B. (N.S.) 566; 30 L. J., C. P. 217; 7 Jur. (N.s.) 775; 3 L. T. 670; 9 W. R. 272.

Collusive Mortgage.]-T., being rightful heir to lands, employed L. as his attorney to prosecute his claims, on the terms that he should have, in lieu of all claim for cost, one-third of the estate which might be recovered. The proceedings being successful, L. entered, as agent of T., into possession of the rents and profits of the estate. L. afterwards pressing for a settlement of his claims, T. required an advance by way of mortgage, and applied to L. for it. refused to advance any money himself, but procured G. to advance the necessary amount for payment of his own claim and a further advance to T. A mortgage was executed by T. to G., with a power of sale. mediately after the mortgage L. procured from T. an authority to pay £120 for the purpose of obtaining the title deeds, which remained in the possession of a solicitor to the wrongful heir, who claimed a lien thereon for £120 for costs. Shortly after this, notice was given by G. calling in the mortgage money; and default being made, the power of sale was exercised, and the lands advertised for sale. It turned out that G. was merely a nominee for L., and had advanced no moneys of his own, and that L. had concealed this fact, and the fact that the original retainer was void for champerty :-Held, therefore, that the agreement and retainer were void; and that the mortgage must be cut down, and stand as a security for so much only as was justly due from T. to L. Thomas v. Lloyd, 3 Jur. (N.S.) 288.

Power to realise Property for Costs Incurred.]-A. having recovered a verdict in ejectment, executed a deed, reciting that he was indebted to the attorney who had conducted the action in £100 for money lent and for work done as an attorney, and was unable to pay it, and had agreed to seizure as after mentioned; and he granted and assigned to the attorney the crop of potatoes growing upon the close which was the subject of the action, and all other effects thereon, with power to the attorney to enter upon the close, and inspect, until payment of the money and interest; proviso, that if A. should pay the money and interest by a day named, the deed should be void; covenant by A. to pay the money and the interest meanwhile. Power to the attorney, in case of default of payment, to enter and carry away the effects assigned, or otherwise to remain on the premises for the purpose of disposing of the effects, and converting them into money; proviso, that till default A. should remain in possession, and that, if the attorney sold the property, he should hold the surplus, after paying the expenses and reimbursing himself, in trust for A. :-Held, that this deed could not be impeached, either on the ground of its amounting to champerty or maintenance, or as being contrary to public policy. Anderson v. Radcliffe, El. Bl. & El. 806; 29 L. J., Q. B. 128; 6 Jur. (N.s.) 578; 1 L. T. 487; 8 W. R. 283-Ex. Ch.

Licence for Beerhouse-Brewers’ Support in Obtaining-Payment of Costs.]-A contract between the tenant of a beerhouse and a firm of brewers-one of whom was a magistrate that, in consideration of their paying all the costs of his application to the licensing magistrates for a licence (which involved that the brewers should give the support of their name and business reputation to such application), he would tie the beer trade of the premises when licensed to them and their successors in business, for a specified term of years, was held not to be equivalent to the purchase of a recommendation, and therefore not illegal and void as being contrary to public policy, nor as savouring of champerty. Savill v. Langman, 79 L. T. 44; 14 T. L. R. 504 -C. A.

Agreement in Probate Action that Costs of all Parties should come out of Estate-Infant Beneficiary-Refusal of Court to Sanction Agreement-Liability of other Parties.]During the pendency of a probate action in which two wills were propounded, one by the plaintiff, who claimed as residuary legatee thereunder, and the other, earlier in date, by the defendant, who had been appointed therein executor and trustee for an infant beneficiary, an agreement was made between the plaintiff of the one part, and the defendant, the infant beneficiary, and the latter’s guardian ad litem, of the other part, providing that the costs of all parties should be paid out of the estate whichever of the two wills was upheld and whether the court so ordered or not. The court pronounced in favour of the earlier will, but refused to sanction on behalf of the infant beneficiary the agreement as to costs. The plaintiff now claimed to recover by virtue of the agreement the amount of his costs in the probate action from the defendant :-Held, that the agreement was not void as tending to affect the

adminstration of justice, and that, although the plaintiff’s costs could not be paid out of the estate inasmuch as the infant beneficiary was not bound by the agreement, the defendant was not thereby freed from his obligation under it, and that consequently he was liable to the plaintiff. Prince v. Haworth, 75 L. J., K. B. 92; [1905] 2 K. B. 768; 92 L. T. 773; 54 W. R. 249; 21 T. L. R.

Purchase of Subject-matter of Suit.]-It is not maintenance to purchase an interest which is the subject of a suit. Harrington v. Long, 2 Myl. & K. 590.

A party entitled to a moiety of the residue of testator’s property assigns it :-Held, the assignee entitled to sue the executor for an account of what was lost by his wilful default, without being liable to objection of champerty. Scully v. Delaney, 2 Ir. Eq. R. 379.

Where creditor who had instituted proceedings at law and in equity against his debtor enters into an agreement with debtor to abandon those proceedings, and gives up his securities in consideration of debtor giving him a lien on securities in hands of another creditor, with authority to sue such other creditor, and agreeing to his best endeavours to assist in adjusting his account with the holder of the securities, and in recovering his securities :-Held, that the agreement does not amount to champerty, but would have done so if it had stipulated, that creditor should maintain such proceedings against the holder of securities in consideration of profits to be derived by debtor from the suit. Hartley v. Russell, 2 Sim. & S. 244; 3 L. J. (o.s.) Ch. 146; 25 R. R. 196.

An equitable interest under a contract of purchase may be the subject of sale; the sub-contract converts the original vendee into trustee of his equitable interest for his vendee, who acquires the same rights which

he had to the benefits to be derived under the primary contract. Such sub-contracts are not within the doctrine of champerty and maintenance. Wood v. Griffiths, 1 Swan. 56; 18 R. R. 18.

A creditor presented a petition for the winding-up of a company, from which he could not obtain payment of his debt. Before the hearing of the petition he sold his debt and the right to proceed with the petition to a shareholder of the company, who obtained leave to amend the petition by making himself a co-petitioner :-Held, that the purchaser could not obtain a winding-up order on the petition, as the court could not sanction his purchase of the right to proceed with it. Paris Skating Rink Co., In re, 5 Ch. D. 959; 37 L. T. 298; 25 W. R. 701-C. A.

An assignment for valuable consideration by the plaintiff in a pending action of tort to one of his creditors of the sum of money to which he may become entitled by virtue of the action, inasmuch as it is not an assignment of a mere right of action, but of property to come into existence in the future, is not invalid as savouring of champerty or maintenance. Glegg v. Bromley, 81 L. J., K. B. 1081; 106 L. T. 825-C. A.

1. WHAT AMOUNTS TO.

The purchase of shares in a company, for the purpose of instituting a suit to restrain the carrying out of an agreement alleged to be illegal, is not maintenance, or anything savouring of maintenance. Hare v. L. & N. W. Ry., Johns. 722; 7 Jur. (N.s.) 1145.

An agreement by a shareholder in a company which is being compulsorily wound up, that, in consideration of a pecuniary equivalent, he will endeavour to postpone the making of a call, or will support the claim of a creditor, is illegal, as being contrary to the policy of the Winding-up Acts. Elliott v. Richardson, 39 L. J., C. P. 340; L. R. 5 C. P. 744; 22 L. T. 858; 18 W. R. 1157.

A legatee, too poor to sue, assigned his legacy for less than it was worth to a person, who bought it for the purpose of enforcing payment by suit :-Held, that this did not amount to champerty or maintenance. Tyson v. Jackson, 30 Beav. 384.

An assignment by the representative of an agent to the principal for the purpose of enabling such principal to maintain a suit is not champerty. Fischer v. Kamala Naicker, 8 Moo. Ind. App. 170; 2 L. T. 94; 8 W. R. 655.

Though the court will not enforce a contract for the purchase of a litigated right, yet if a lawful contract for the purchase of an undisputed right be made, and the necessity for litigation as against third persons arise from circumstances afterwards discovered, the purchaser or assignee is not precluded from suing upon his contract. It is not champerty, where the right purchase was originally clear, but the litigation is the result of circumstances subsequently arising, or subsequently known. Wilson v. Short, 6 Hare, 366; 17 L. J., Ch. 289; 12 Jur. 301.

Sale of Property for Purposes of Litigation and to Prevent Deterioration.]-A company which was being wound up was desirous of bringing an action against one F. to rescind a contract for purchase of the company’s mine and to recover the purchase money of £70,000 from F. The company had no funds to prosecute the litigation. Accordingly a new company was formed and an agreement under seal was entered into between the old and the new company, whereby the mine and plant were assigned to the new company, who were to provide money not exceeding £30,000, partly for the purposes of litigation against F., and partly to prevent deterioration by working the mine. F. took out a summons for leave to bring an action to impeach the deed :-Held,

that the essence of the transaction was that it was a mode of converting the mines and plant into money, to be used partly in litigation and partly to prevent deterioration by working the mine, and therefore the deed was not bad either on the ground of maintenance or champerty. Cambrian Mining Co., In re, 48 L. T. 114.

Assignment by Trustee in Bankruptcy of Subject-matter of Action.]-The trustee in bankruptcy of a man who had conveyed away some real property absolutely, commenced an action against the grantee to have it declared that the conveyance was a mortgage, and that the deed ought to stand as a security only for the money advanced. The action had proceeded no farther than the issue of the writ, when the trustee sold and assigned the subject-matter of the action to a purchaser for value :-Held, that the assignee from the trustee in bankruptcy was entitled to continue the action. Whether such a right could not have been assigned by the grantor himself, quære. Seear v. Lawson, 49 L. J., Bk. 69; 15 Ch. W. 426; 42 L. T. 893; 28 W. R. 929C. A.

During the pendency of an action the plaintiffs became bankrupt, and K. was appointed trustee by deed, dated May 10, 1888, and made between K. (as such trustee in bankruptcy) of the one part, and F. (who was a creditor under the bankruptcy) of the other part, reciting that K. was not disposed to take on himself the risk and expense of continuing the action. The right of action was assigned upon the terms that F. should at his own expense continue the action free from control by K., who was, so far as the rules and practice of the court would permit, to give all assistance and information in his power to assist F. to carry on the action, and F. agreed to carry on the action at his own expense with diligence, and to use his best endeavours to bring it to a successful issue, with power to compromise, and the money which might be recovered or might be received by way of compromise, after deducting actual disbursements not paid by the defendants (but not including F.’s solicitor and client costs), was to be divided into four parts, three to belong to F. and one to K. F. having obtained an order of course to carry on the proceedings in the action, the defendants moved to discharge the order on the ground that the deed of May 10, 1888, was champertous. It appeared from the evidence that F. was acting as trustee for himself and other creditors under the bankruptcy, including the plaintiff’s solicitors, who were also the solicitors of F.-Held, that the principle of the decision in Seear v. Lawson (15 Ch. D. 426) applied, and that the fact that some of the creditors were to carry on the action at their own risk and expense, and to take a larger share of the fruits of the action than they otherwise would have done, did not bring the case within the law against champerty and maintenance, and that the transaction was one permitted by the bankruptcy laws. Guy v. Churchill, 58 L. J., Ch. 345; 40 Ch. D. 481; 60 L. T. 473; 37 W. R. 504.

 

Sale – Prior Voidable Agreement.] purchase of an estate for the purpose of setting aside a previous agreement affecting the property on the ground of fraud, partakes of the nature of champerty, and will not be enforced in equity. De Hoghton v. Money, L. R. 2 Ch. 164; 15 L. T. 403; 15 W. R. 214.

A conveyance, whether voluntary or for valuable consideration, of property which the grantor has previously conveyed by a deed voidable in equity, is not void on the ground of champerty. Dickinson v. Burrell, 35 L. J., Ch. 371; L. R. 1 Eq. 337; 12 Jur. (N.s.) 199; 14 W. R. 412.

Condition as to Rents, &c., to be Recovered.]-An agreement between the seller and purchaser of an estate, that the purchaser bearing the expense of certain suits commenced by the seller against an occupier for arrears of rent, should have the rent to be so recovered, and any sum that could be recovered for dilapidations, and might use the seller’s name in actions he might think fit to commence against the occupier for arrears of rent or dilapidations, is not void, as savouring of champerty. Williams v. Prothero, 5 Bing. 309; 2 M. & P. 779; 3 Y. & J. 129; 30 R. R. 608. And see Ellis v. Torrington, 89 L. J., K. B. 369.

Charitable Motive Induced by Religious Sympathy-Proceedings to Obtain Custody of Third Persons.]—A charitable motive induced by sympathy with the religious views of another person the object of the charity is none the less such a charitable motive as comes within the recognised exceptions to the law against maintenance forbidding one person to support that other in his law suit. Holden v. Thompson, 76 L. J., K. B. 889; [1907] 2 K. B. 489; 97 L. T. 138; 23 T. L. R. 529-D.

Sed quære, per Phillimore, J., whether the law against maintenance has any application to cases involving questions of the custody of the person. Ib.

 

between the plaintiff and the defendant that, in consideration of the plaintiff putting up all the necessary disbursements for the institution and conduct of legal or other proceedings, the net profit accruing directly or indirectly was to be equally divided between the defendant and the society”:-Held, that the agreement was illegal and void as champertous, as there was no community of interest between the parties, the only interest being such as was created by the agreement itself. Ford v. Radford, 64 S. J. 571; 36 T. L. R. 658.

Sale of Information as to Property-Agreement to give Share of Property RecoveredLegality.]-There is nothing illegal in a sale by one person to another of information likely, or supposed to be likely, to lead to the recovery of property, and in an agreement to pay the person selling the information a share of the property if and when recovered. But if the seller of the information further contracts that he will himself recover or assist in recovering the property, and provide evidence by which it may be recovered, and will take his remuneration in the form of a share of the property when recovered, the agreement is champertous and void. Wedgerfield v. De Bernardy, 24 T. L. R. 497-Parker, J. Affirmed, 25 T. L. R. 21-C. A.

Trade Rivals-Contract to Indemnify CusCommercial Interest.]-It is not maintenance to uphold a party in litigation in the result of which the party accused of maintenance has a real and bona fide interest. British Cash and Parcel Conveyors v. Lamson Store Service Co., 77 L. J., K. B. 649; [1908] 1 K. B. 1006; 98 L. T. 875-C. A.

Absolute Assignment of Debt in Writing-tomers Trust in Favour of Assignor Assignee Taking no Beneficial Interest Purpose of Assignee to Make Debtor Bankrupt.]-The plaintiff, being satisfied that it was for the best interests of a company, of which he was a shareholder and director, that the defendant, a co-director of the company, should be removed from the board, obtained from creditors of the defendant an absolute assignment in writing of the debts due to them from the defendant, with the object of making the defendant a bankrupt, and so removing him from the board. The assignment was made in consideration of a covenant by the plaintiff that in case he should be able to recover the amount of the debts he would immediately pay over to the assignors the respective amounts, or so much thereof as he might be able to recover, after payment of all costs necessarily incurred by him-Held, that as the plaintiff was simply asserting a legal right consequential upon the possession of property which had been validly assigned to him, his action was not open to the objection of maintenance, or otherwise such that upon the grounds of public policy the court ought to refuse its assistance. Fitzroy v. Cave, 74 L. J., K. B. 829; [1905] 2 K. B. 364; 93 L. T. 499; 54 W. R. 17; 21 T. L. R. 612-C. A.

 

The plaintiffs and defendants were trade rivals, each dealing in a special apparatus used for carrying cash in retail shops. The defendants obtained orders for their apparatus from certain persons who had at some time used the plaintiffs’ apparatus and discontinued such use, and agreed to indemnify such persons in any action brought against them by the plaintiffs. They in fact paid certain damages and costs recovered by the plaintiffs against such persons. The plaintiffs brought an action against the defendants for damages for maintenance :-Held, that the defendants had a pecuniary and commercial interest in the protection of their customers which justified the contracts of indemnity given by them, and that they had not therefore been guilty of maintenance. Ib.

Champerty – Copyright — Assignment to Society by Members-Agreement for Division of Damages-Action for Infringement.]-The plaintiff society was formed as a limited company to protect the copyright interests of members, who assigned their copyrights to the society. By the rules of the society fees and damages recovered were pooled, and the fund so formed was divided among the members after the deduction of expenses. assignments were real and substantial transactions, and the provision as to the division of the damages was only subsidiary. In an action by the society for the infringement of copyrights which had been assigned to the society by two members :-Held, that the arrangement between the society and its members was made for legitimate business reasons and was not champertous, and the plaintiffs were entitled to succeed. Performing Rights Society, Lim. v. Thompson, 34 T. L. R. 351.

Action for Slander-Master and ServantCommon Interest-Costs as between Solicitor and Client.]-Held, that the defendant society had not an interest in maintaining an action for slander by one of their inspectors where the action was really brought for their own purposes and they knew after the action had been commenced that the inspector was unfit to be continued in their service as an inspector. Held, also, that the plaintiff was entitled to recover from the defendants her costs as between solicitor and client in defending the action for slander brought against her, and also her costs as between solicitor and client in an appeal in certain bastardy proceedings taken by her against the inspector. Scott v. National Society for Prevention of Cruelty to Children, 25 T. L. R. 789.

Trade Union-Instigating Member to Bring Action for Libel-Reasonable and Probable Cause Paying Costs of Action-Common Interest.]-The objects of a trade union, as stated in the rules, were the raising of funds for mutual benefit by the contributions of the members, which were to be applied (inter alia) to giving legal aid to members when necessity arose in their relation with employers; and in cases of a dispute arising between members and their employers, or unlawful treatment of members by their employers, the executive committee were, if they considered the merits of the case justified such a course, to provide legal aid for the members. A member of the union was dismissed by his employer without a week’s notice, and in answer to a letter written to him by the general secretary of the union the employer stated that the member was discharged for dishonesty. The union took proceedings on behalf of the member to recover a week’s salary in lieu of notice, and the employer paid the amount. The executive committee of the union then obtained the members consent to bring an action for libel against the employer, founded upon his letter to the general secretary, and brought an action and employed their own solicitors, whose costs they paid. The action was dismissed with costs. The employer sued the union to recover his taxed costs of the action for libel :-Held, that the union had instigated the plaintiff to bring the action, for which there was no reasonable or probable cause; that the union had wrongfully maintained the plaintiff in the action, having no common interest; and that therefore the union were liable. Semble, there was nothing in the rules of the union to justify the action; but even if there was, the rules could not justify an act which would be wrongful if done by an individual. Greig v. National Amalgamated Union of Shop Assistants, 22 T. L. R. 274.

Agreement to Recover Tithes.]-Agreement to lease the rectorial tithes of a parish,

including the tithes of ninety acres, supposed to be within the parish, but which had not paid tithes to the lessor during his incumbency, with a stipulation that the intended lessee would within a given time take such legal proceedings for the recovery of the tithes of the ninety acres as his counsel should advise -Held, not to be within the Statute of Maintenance. White v. Gardner, 1 Y. & Coll. 385.

Bare Right to Bring Action.]-An assignment of a bare right to file a bill in equity for a fraud committed on the assignor is contrary to sound policy, and void; therefore, where A., who was entitled to certain property under his father’s will, for a valuable consideration assigned the whole of that property (excepting a reversionary interest in the funds) to B., his father’s executor, and afterwards assigned the whole of his interest under his father’s will (including, therefore, the reversionary interest) to C.-Held, that C. could not maintain a bill to set aside the first assignment, on the ground of fraud committed by B. against A., the latter refusing to join as plaintiff in the suit. A. chose in action not coupled with any partial interest in possession, and which cannot be reduced into possession without a suit, is not assignable in equity. Courts of equity will give no encouragement to contracts which savour of maintenance or champerty, though such contracts may not be within the strict legal limits assigned to those offences. Prosser V. Edmonds, 1 Y. & Coll. 481. S. P., Twiss v. Noblett, Ir. R. 4 Eq. 65.

The assignment to his creditor, by the debtor, of his right to set aside a convey. ance procured from him by fraud, savours of maintenance, and gives the assignee no right to institute an action. Graham v. La Crosse & M. R. Co., 102 U. S. 148.

A tenant for life of a trust estate mortgaged it, and it was sold by the mortgagee. After the sale the purchaser and mortgagee, for a nominal consideration, assigned to the tenant for life certain alleged arrears of interest and profits of part of the trust fund, which, as the plaintiff alleged, the trustees had made in excess of the interest for which they had accounted. A bill filed against the trustees, on the title conferred by this assignment, for an account of their profits, was dismissed with costs. Hill v. Boyle, L. R. 4 Eq. 260.

Agreement to Contest Will.]-A declaration that H., a brother of the defendant and a cousin of the plaintiff, died, leaving large real and personal property; that the defendant was heir-at-law of H., and one of his Lext of kin; that H. left a will whereby his real and personal property was given to persons other than the plaintiff and the defendant, and the plaintiff believed that the will revoked a former will by which H. had bequeathed property to the plaintiff; and that in consideration that the plaintiff would take the necessary steps to contest the will, and would advance money and obtain evidence for such purpose and instruct an attorney, the defendant promised to share with the plaintiff half the real and personal property which might come to the defendant by reason of such proceed-
ings:-Held, that the agreement amounted  to champerty. Hutley v. Hutley, 42 L. J.,
Q. B. 52; L. R. 8 Q. B. 112; 28 L. T.
63; 21 W. R. 479.

By the prior of two wills, the eldest son of an heir-at-law of a testator took an estate tail in remainder. By a subsequent will this remainder was taken from him and limited to another party. The subsequent will was admitted to probate, but the heir contested its validity. Afterwards a compromise was effected. The heir and his son were alleged to have made a sub-agreement between themselves as to the first will (under which the son would take), and then both joined to resist the second will, which gave the estates completely away to strangers :-Held, that this of savouring an agreement champerty. Bainbridge v. Moss, 3 Jur. (N.s.) 58.

To Sue out Commission of Lunacy.]-A., being heir presumptive to B., who was then supposed to be then a lunatic, and being under an apprehension that unfair means might be resorted to in his then state of mind, to deprive the family of the succession to the estate, agreed with his eldest son C., that he should sue out a commission of lunacy against B. and carry on such other suits and law proceedings as should be necessary, in the name of A., at the expense of C.; in consideration of which agreement, and natural love and affection, A. covenanted, that, after the death of B. the estates which should thereupon descend to him should be conveyed to himself for life, remainder to his son for life, with remainder to his first and other sons in tail male. The son, at his own expense, and in the name of his father, sued out the commission under which B. was found a lunatic, who soon afterwards died, whereupon the father succeeded as heir to the lunatic’s estates-Held, that the agreement was not void for champerty or maintenance. Persse v. Persse, West, 110; 7 Cl. & F. 279; 4 Jur. 358. To Communicate Information.]-A contract on terms of to communicate information getting a share of any property which may thereby be recovered by the person to whom the information is given is not in itself champerty; but if the contract provides further that the person who gives the information, and who is to share in what may be recovered, shall himself recover the property or actively assist in the recovery of it by procuring evidence or similar means, then the contract ia contrary to the policy of the law and void. Rees v. De Bernardy, 65 L. J., Ch. 656; [1896] 2 Ch. 437; 74 L. T. 585.

An agreement to communicate such information as shall enable a party to recover a sum of money by action, and to exert influence in procuring evidence to substantiate the claim, upon condition of receiving a portion of the sum recovered, is illegal, as it amounts to champerty. Stanley v. Jones, 7 Bing. 369; 5 M. & P. 193; 9 L. J. (o.s.) C. P. 51.

A declaration stated, that in consideration that the plaintiff, at the request of the defendant, gave the defendant a certain letter, by  means of which he was enabled to end disputes
and differences which had arisen between
himself and third parties, and to recover
certain property, the defendant promised to
give the plaintiff £1,000:-Held, that this
declaration disclosed a sufficient consideration
for the defendant’s promise. Wilkinson v.
Olieveira, 1 Scott, 461; 1 Bing (N.c.) 490.

To Produce Evidence.]-A count stated
that the plaintiff was in possession of docu-
ments and information which would prove the
defendant entitled to property not then in
his possession, and of which he was not
aware; and that the plaintiff proposed to give
him all the documents in his possession on the
defendant agreeing to pay to the plaintiff one-
fifth of the property if it should come into
his possession, to which the defendant, in
consideration of the premises, agreed that if
by the documents and information he should
become possessed of any property not in his
possession or that he did not know of, he
would pay to the plaintiff one-fifth of the value
of the property to be recovered and possessed
defendant should not be compelled for the pur.
by the defendant, and it was agreed that the
poses of that agreement to take proceedings at
law or in equity to recover the property or any
part thereof; provided, that if the defendant
did not become possessed of any property, he
should not be called upon to pay anything
whatever, and that, if he did not think proper
to proceed to recover the property, he would
return the papers, and the agreement should
Averment, that the plaintiff
be cancelled.
gave the defendant the documents and in-
formation; and he, upon the documents and
information, took proceedings in equity and
law, and by the documents and information
actually recovered, and became possessed of
property which, at the time of the agreement,
he was not in possession, and of which he
did not know. Breach, that he had not paid
the fifth of the value :-Held, that the agree-
ment did not disclose champerty or mainten-
ance, inasmuch as no suit was depending for
the recovery of the property, and there was
no stipulation for the commencement of any.
Sprye v. Porter, 7 El. & Bl. 58; 26 L. J.,
Q. B. 64; 3 Jur. (N.s.) 330; 5 W. R. 81.

Plea, that T. died a bachelor and intestate, known possessed of personal property, without any relation, and administration granted to the solicitor of the Treasury as nominee of the Crown. That, at the time of the agreement after mentioned, the defendant had no knowledge that he was next of kin to T., or entitled to the property; and the plaintiff represented to the defendant that he would give such information and evidence, provided that, if it became necessary for the defendant to institute proceedings in law or equity for the recovery of the property, and by means of such information and evidence the defendant should recover the property, he would enter into an agreement with the plaintiff to pay him one-fifth of the property which That thereupon it was he should so recover. unlawfully agreed that the plaintiff should give such information and evidence, and that, if by means of such information and evidence the defendants should recover the property, he should pay the plaintiff one-fifth of the property so to be recovered. That, for the purpose of carrying out the agreement and in order to secure to the plaintiff one-fifth of the property so to be recovered, the defendant entered into an agreement; that proceedings were taken in Chancery and the Queen’s Bench, by the defendant for recovering the property, and information and evidence were given by the plaintiff in pursuance of the agreement, and the defendant recovered the property as next of kin to T., and that the plaintiff was not interested in any of the property save under the agreement :-Held, that the plea shewed the agreement to be illegal on the ground of maintenance. Ib.

To Ascertain Right.]-Where A., having a right which was supposed to be of uncertain extent, likely to be resisted or questioned, and not susceptible immediately or easily of proof, and B. undertook the ascertainment and establishment of this right, on the terms of the expenditure for the purpose being his, and of his having half the benefit of what should be so obtained-Held, that such an agreement (whether it amounted strictly in point of law to champerty or maintenance so as to constitute a punishable offence or not) must be considered against the policy of the law, mischievous and such as a court of equity ought to discourage and relieve against. Reynell v. Sprye, 1 De G. M. & G. 660; 21 L. J., Ch. 633.

Subscriptions to Defend a Suit.]-An injunction having been granted to restrain the defendants from infringing a patent for nickel plating, they gave notice of appeal and pub. lished in a newspaper an advertisement inviting the trade to subscribe towards the expenses of the appeal, and also an advertisement offering a reward of £100 to any one who could produce documentary evidence that nicket plating was done before 1869. plaintiffs moved to commit the publishers of the newspaper for contempt of court in publishing these advertisements, as being an interference with the course of justice, stating at the same time that they did not press for a committal, but would be satisfied with an expression of regret and an undertaking not to repeat the advertisements :-Held, that as all persons engaged in the trade of plating had a common interest in resisting the claims of the plaintiffs, an advertisement asking them to contribute to the expenses of defending the proceedings was open to no objection. Plating Co. v. Farquharson, 50 L. J., Ch. 406; 17 Ch. D. 49; 44 L. T. 389; 29 W. R. 510C. A.

Supplying Funds for Suit.]—A fair agreement to supply funds to carry on a suit in consideration of having a share of the property, if recovered, ought not to be regarded as being per se opposed to public policy. But an agreement of such a kind ought to be carefully watched, and when extortionate, unconscionable, or made for improper objects, ought to be held invalid. Ram Coomar Coondoo v. Chunder Canto Mookerjee, 2 App. Cas. 186- P. C.

Money having been advanced to an heir-atlaw by a subscription from different persons, and among the rest from his attorney, to enable him to prosecute suits, and an absolute bond having been taken from him for double the sum lent, with a defeasance executed some days after, declaring, that if he did not recover the estate, or half of it, the bond was to be delivered up :-Held, to be unconscionable, savouring of champerty, and dangerous to public justice. Strachan v. Brander, 1 Eden, 304.

A party prosecuting his claim to a fund in court, to which he was ultimately found entitled, mortgaged it pendente lite, to enable him to carry on his claim :-Held, not void for champerty. Cockell v. Taylor, 15 Beav. 103; 21 L. J., Ch. 545.

J., a young man in very poor circumstances, was defendant in a probate action in which he claimed a share of certain real estate as coheir of the deceased. To enable him to conduct his defence he borrowed money from K., a solicitor, to whom he executed a mortgage whereby he, J., covenanted to employ a particular person as his solicitor in the action, and, if he should be successful, in the action, to pay K. £225 by way of bonus “; and it was provided that K. should make such further advances to J. as and when K. should think fit to meet any further necessities of J., or to be applied in or towards the costs of the action. The deed then charged J.’s interest in the real estate in question with present and future advances and interest at 5 per cent. and the £225 bonus. J. received a further advance from K., making a total of £100 for advances, and was ultimately successful in establishing his claim in the probate action :-Held, in an action by J. to redeem that the mortgage was tainted with champerty, and, accordingly, redemption was decreed on payment only of the sums actually advanced to J., with interest. James v. Kerr, 58 L. J., Ch. 355; 40 Ch. D. 449; 60 L. T. 212; 37 W. R. 279; 53 J. P. 628. If a person makes a bargain with another to assist him in bringing an action, upon the terms that he is to receive part of the proceeds, that bargain amounts in law to champerty although the person rendering the assistance would not have done SO to a stranger or to any one other than a friend in needy circumstances. Charity may be indiscreet, but must not be mercenary. The plaintiff out of charity lent a sum of £326 10s. to the defendant to enable him to bring an action for malicious prosecution. The defendant agreed that if he succeeded in the action he would repay this loan, and also pay £60 out of any damages he might recover. The defendant, having succeeded in his action for malicious prosecution, repaid to the plaintiff £272, but he refused to repay the balance of £54 10s. or to pay the £60, whereupon the plaintiff sued him to recover these sums :— Held, that the plaintiff was entitled to recover the £54 10s., but not the £60. Cole v. Booker, 23 T. L. R. 295.

2. CONTRARY TO 32 HEN. 8, c. 9.

No Correlative Agreement to Proceed with Action.]-The plaintiff advanced to a person named Reynolds the sum of £30 upon his signing an undertaking to pay the plaintiff one-third of the amount of any damages he (Reynolds) might recover in an action against the London and North-Western Railway Company. Reynolds had already recovered a verdict against the railway company, but a new trial had been granted. In the second trial he obtained a verdict for £130. Before the plaintiff gave notice to the railway company of his charge upon the verdict, the company had been served with a garnishee order nisi, obtained by the defendant, who had recovered judgment against Reynolds in default of appearance for £200 7s. The railway company were ordered to pay the sum of £43 6s. 8d., that being one-third of the amount recovered by Reynolds, into court; and an issue was directed to try the right of the plaintiff to this sum as against the defendant : -Held, that the agreement between the plaintiff and Reynolds amounted to champerty, and was void. That in order to constitute champerty it is not essential that there should be an undertaking on the part of the litigant to proceed with the action. Ball v. Warwick, 50 L. J., Q. B. 382; 44 L. T. 218; 29 W. R. 468.

Instigation of Solicitor.]-Mere encouragement and instigation on the part of a solicitor to institute proceedings is not sufficient to debar a plaintiff of relief, even though his interest in the subject-matter of the suit is very small. Williams v. Page, 24 Beav. 654; 27 L. J., Ch. 425; 4 Jur. (N.s.) 102.

Pleading.] Champerty should not be noticed by the court unless it appears from the pleadings. Fischer v. Naicker, 8 Moo. Ind. App. 170; 2 L. T. 94; 8 W. R. 655.

Collusive Agreement.] When a person undertakes to make out the title of another to an estate, and is to have part of the lands as a satisfaction for his trouble, though the agreement for this purpose is artfully drawn, in order to keep it out of the statutes of champerty, he will not be entitled to have a specific performance decreed, but will be left to his remedy at law. Powell v. Knowles, 2 Atk. 224.

Who may Raise Objection.]—One of three annuities, secured on land, and a share of another of them, were, pending a suit in which the title of them was in litigation, purchased in the name of A. A., by the deed transferring them to him, covenanted to indemnify the vendors against past and future costs; and at the time he executed a declaration of trust, shewing that the purchase was made principally on behalf of the solicitors who acted in the suit for the parties entitled to the residue of the three annuities, but were not the solicitors of the vendors :-Held, that the purchase was not affected by the laws relating to champerty and maintenance, and that even assuming it to be avoidable as between the vendors and purchasers, the objection could not be taken by third parties. Knight v. Bowyer, 2 De G. & J. 421; 27

Measure of Damage.]-A limited company may be liable for maintenance where their maintaining an action, although the action is servant improperly exercises his authority by successful. Neville v. London Express Newspapers, Lim., 86 L. J., K. B. 1055; [1917] 2 K. B. 564; 117 L. T. 598; 33 T. L. R. 409-C. A. Where the editor of a newspaper, the proprietors and publishers of which were a limited company, successfully maintained an action for fraudulent misrepresentation on behalf of certain members of the public, it was held in an action for the maintenance against the company that the measure of the plaintiff’s damages was such sum as would amount to an indemnity against the costs incurred by him, and that he could therefore recover the costs ordered to be paid by him as defendant to the plaintiffs in the maintained action, and the costs, as between solicitor and client, incurred by him in defending that action. Dictum of Lord Selborne in Metropolitan Bank v. Pooley (54 L. J., Q. B. 449, 453; 10 App. Cas. 210, 218) considered. Ib.

Enforcing Judgment.]—The court has no jurisdiction to restrain a plaintiff from taking proceedings to enforce a judgment in his favour on the ground that the action was brought under circumstances amounting to the common law offence of maintenance. Elborough v. Ayres, 39 L. J., Ch. 601; L. R. 10 Eq. 367; 23 L. T. 68; 18 W. R. 913. See also title TRADE UNION.

2. CONTRARY TO 32 HEN. 8, c. 9. What Are.]–An agreement made by parties out of possession of premises, to proceed in a court of equity to recover, and to divide lands when recovered, is contrary to the policy of the law as well as the 32 Hen. 8, c. 9, against pretended titles. Cholmondeley v. Clinton, 4 Bligh (N.S.) 4.

A sale by an administrator of a pretended right or title to premises of a term in which the intestate died possessed, but of which the administrator never had possession, is within the prohibition of 32 Hen. 8, c. 9. Doe d Williams v. Evans, 1 C. B. 717; 14 L. J., C. P. 237; 9 Jur. 712.

A., possessed of a term, died in 1828; B., who had during A.’s life resided on part of the premises, at A.’s death claimed and took possession of the whole, and retained it till he died, in 1829, having by his will devised the premises to C., who remained in undisturbed possession until 1841, when A.’s nextof-kin took out letters of administration, and sold his right or title in the premises to D. : -Held, that the conveyance was void as well at common law as by 32 Hen. 8, c. 9. Ib.

B., claiming to be tenant in tail, with remainder to C. in fee, of lands in the adverse possession of D., conveys, by lease and release, all his interest to C.-Held, that the conveyance is not within 32 Hen. 8, c. 9. Anson v. Lee, 4 Sim. 364.

3. ACTION For.

Plea of the statute 32 Hen. 8, c. 9, s. 3, against buying and selling pretended titles, and also that there was not any mortgage, as mentioned in the bill, to a bill that the defendant might redeem a mortgage upon a covenant in a lease from the defendant to the plaintiff :-Held, good, though a negative plea. Hitchins v. Lander, Coop. C. C. 34; 14 R. R. 214.

Declaration that, by deed, the defendant guaranteed to the plaintiff payment by F. of the premiums payable upon a policy of insurance, assigned, as security, by F. to the plaintiff, and that F. had not paid the premiums. Plea, that the deed was made in pursuance of an agreement between F. and the plaintiff; that, inasmuch as F. was in expectation to become seized in fee simple, at the death of S., as the devisee under her will of premises in the occupation of a tenant, subject to a lease of which the plaintiff was assignee, if the plaintiff would at once pay to F. £500, F. would, at the death of S., either repay to the plaintiff the £500, or, if F. should become devisee, he would convey the estate in fee simple in the premises to the plaintiff; and, as a security, he assigned the policy, and induced the defendant to enter into the deed; and that, at the making of the agreement, neither F., nor any through whom he claimed, had been in possession of the reversion or remainder, nor had taken the rents and profits within one year next before the making of the promise, contrary to the statute-is a bad plea, because the agreement is not within the prohibition of 32 Hen. 8, c. 9. Cook v. Field, 15 Q. B. 460; 19 L. J., Q. B. 441; 14 Jur. 951.

Reasonable and Probable Cause.] count, charging that the defendant unlawfully, maliciously, and without reasonable or probable cause, and without having any interest, instigated and stirred up A., a pauper, to commence and prosecute an action against the plaintiff, by reason whereof A. commenced and prosecuted such action, whereby the plaintiff was put to trouble and vexation, and obliged to lay out a sum in defence of such action, is good. Pechell v. Watson, 8 M. & W. 691; 11 L. J., Ex. 225.

A count, charging that the defendant unlawfully and maliciously did advise, procure, instigate and stir up J. T. to commence and prosecute an action of trespass; that by and

through such advice J. T. did, in fact, commence and prosecute the action; and that the plaintiff was acquitted, whereby he was put to trouble, and obliged to pay a sum of money -is bad, for not averring that the action was commenced and prosecuted without reasonable or probable cause; this not being a count for maintenance in the proper sense of maintaining an existing suit, but for procuring one to be commenced. Flight v. Leman, D. & M. 67; 4 Q. B. 883; 12 L. J., Q. B. 353; 7 Jur. 557.

By Bankrupt against Company.]-A bankrupt cannot recover in an action for maintenance committed in relation to the proceedings for procuring his adjudication, since the cause of action must have arisen, if at all, before the bankruptcy, and the right to sue must therefore have passed to the trustee. Metropolitan Bank v. Pooley, 54 L. J., Q. B. 449; 10 App. Cas. 210; 53 L. T. 163; 33 W. R. 709; 49 J. P. 756-H. L. (E.)

Evidence to Establish.]-By the English law, in order to maintain an action for champerty or maintenance, it is necessary to establish that the transaction was against good policy and justice, or tending to promote unnecessary litigation. Fischer v. Kamala Naicker, 8 Moo. Ind. App. 170; 2 L. T. 94; 8 W. R. 655.]]

 

Irish Cases

Champerty

In Fraser v Buckle [1994] 1 IR 1; [1994] 1 ILRM 276, Costello J  held  that heir-locator agreements, where the plaintiffs sought a fee for locating heirs to unclaimed property, were champertous and thus unenforceable.

Persona Digital Telephony Ltd v Minister for Public Enterprise, Ireland [2017] IESC 27

The Supreme Court considered the legality of third-party litigation funding. The Court reaffirmed that maintenance and champerty remain both torts and criminal offences in Ireland, rendering such funding arrangements unlawful. Chief Justice Denham emphasized that any changes to these doctrines fall within the legislature’s purview, not the judiciary’s. Justice McKechnie dissented, expressing concern over potential barriers to access to justice. ​

SPV Osus Ltd v HSBC Institutional Trust Services (Ireland) Ltd [2018] IESC 44

The Supreme Court considered the assignment of a bare cause of action to a third party with no legitimate interest in the proceedings. The Court held that such assignments are prohibited under the doctrines of maintenance and champerty, reinforcing their continued relevance in Irish law. ​

Irish Law Reform Commission’s Consultation Paper on Third-Party Litigation Funding (2023)

In 2023, the Law Reform Commission published a consultation paper examining the potential for reforming the laws on maintenance and champerty, particularly concerning third-party litigation funding. The paper acknowledges the evolving legal landscape and seeks input on whether to permit and regulate such funding mechanisms in Ireland.

Persona Digital Telephony Ltd v Minister for Public Enterprise, Ireland [2017] IESC 27

In this landmark case, the Supreme Court examined the legality of third-party litigation funding. The plaintiffs sought financial backing from Harbour Fund III, LP to cover legal expenses in a significant public interest case. The Court reaffirmed that maintenance and champerty remain both torts and criminal offences in Ireland, rendering such funding arrangements unlawful. Chief Justice Denham emphasized that any changes to these doctrines fall within the legislature’s purview, not the judiciary’s. Justice McKechnie dissented, expressing concern over potential barriers to access to justice. ​