VII. Another offence against public justice is the returning from transportation, or being seen at large in Great Britain, before the expiration VII. Returning from transpor- of the term for which the offender was transported, or sentenced tation, &c. to penal servitude (e).

VIII. Taking re

VIII. An eighth offence to be here noticed is that of taking a reward, under pretence of helping the owner to his stolen goods. This was a contrivance carried to a great length of villany in the beginning of the reign ward to help to of George I.: the confederates of the felons thus disposing of stolen goods. stolen goods, at a cheap rate, to the owners themselves, and thereby stifling all further inquiry. The notorious Jonathan Wild had under him a well-disciplined corps of thieves, who brought in all their spoils to him: and he kept a sort of public office for restoring them to the owners at half price. To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted by statute 4 Geo. 1, c. 11, that whoever shall * take a reward under the pretence of helping any one to stolen [* 146 ] goods, shall suffer as the felon who stole them; unless he causes such principal felon to be apprehended and brought to trial, and also gives evidence against him. Wild, still continuing in his old practice, was upon this statute at last convicted and executed (ƒ).

With the view of promoting a due administration of justice by the prosecu tion of offenders, certain provisions having reference to the restitution and recovery of stolen property are included in the Larceny Act (g);—

1st. If any person guilty of any such felony or misdemeanor as in that Act mentioned, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, be indicted for such offence, by or on behalf of the owner of the property, his executor or administrator, and convicted thereof, the property shall be restored to the owner or his representative; and the court before whom the offender is tried may award from time to time writs of restitution for the said property, or may order the restitution thereof in a summary manner (h).

*

2ndly. Whosoever shall corruptly take any money or reward, directly or indirectly, under pretence or upon account of helping any person [* 147] to any chattel, money, valuable security, or other property which has by any felony or misdemeanor been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, as in the Larceny Act before mentioned, shall (unless

(e) 5 Geo. 4, c. 84, s. 22; 20 & 21 Vict. c. 3, s. 2; 27 & 28 Vict. c. 47. Punishment: penal servitude for life, or for not less than five years, with previous imprisonment for any term not exceeding four years, or imprisonment with or without hard labour for not more than two years.

(f) See stat. 6 Geo. 1, c. 23, s. 9. (g) 24 & 25 Vict. c. 96.

(h) S. 100, which provides that if it shall appear before any award or order made that any valuable security has been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or being a negotiable instrument has been bona fide

taken or received by transfer or delivery, by some person or body corporate, for consideration, without notice or reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, the court shall not award or order the restitution of such security; and further, that nothing in the above section contained shall apply on the prosecution of any trustee, or agent intrusted with the possession of goods or documents of title to goods for any misde meanor against the Larceny Act. See 30 & 31 Vict. c. 35, s. 9.

he has used due diligence to cause the offender to be brought to trial for the same) be guilty of felony (i).

IX. Receiving of stolen goods, knowing them to be stolen, is sometimes a felony and sometimes a misdemeanor, and may be viewed as an affront to public justice; this offence will, however, be more conveniently considered hereafter (k), in connection with that of larceny, to which it is closely allied.

IX. Receiving stolen goods.

By stat. 32 & 33 Vict. c. 99, s. 11, it is, inter alia, enacted that where any person who has been previously convicted of an offence such as hereafter specified (a), and "involving fraud or dishonesty, is found in the possession of stolen goods, evidence of such previous conviction shall be admissible as evidence of his knowledge that such goods have been stolen; and in any proceedings that may be taken against him as receiver of stolen goods, or otherwise in relation to his having been found in possession of such goods, proof may be given of his previous conviction before evidence is given of his having been found in possession of such stolen goods; provided that not less than seven days' notice shall be given to such person that proof is intended to be given of his previous conviction, and that he will be deemed to have known such goods to have been stolen until he has proved the contrary.

"Moreover, where proceedings are taken against any person for having in his possession stolen goods, evidence may be given that there were found in the possession of such person other goods stolen within the preceding period of twelve months, and such evidence may be taken into consideration for the purpose of proving that such person knew the goods to be stolen which form the subject of the proceedings taken against him."

X. Theft-bote.

X. Of a nature somewhat similar to the two last offences is that of theft-bote, which is where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. This is frequently called compounding of felony, and formerly was held to make a man an accessory, but is now punished only with fine aud imprisonment (7). This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. And the Salic law, “latroni eum similem habuit, qui furtum celare vellet, et occultè sine judice compositionem ejus admittere" (m). And with us, by the Larceny Act (n), it is provided that whosoever publicly advertises a reward for the return of property stolen or lost, and in such advertisement uses any words purporting that no questions will be asked, or * makes use of any words in any [148] public advertisement purporting that a reward will be given or paid for property stolen or lost, without seizing or making any inquiry after the person producing such property, or promises or offers in any such public advertisement to return to any pawnbroker or other person who may have bought or advanced money by way of loan upon such property the money so paid or advanced, or any other sum of money or reward for the return thereof, As to taking money to restore stolen dogs, see 24 & 25 Vict. c. 96, s. 20.

(i) S. 101. Punishment: penal servitude for any term not exceeding seven, and not less than five years, or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement; and, if a male under the age of eighteen years, with or without whipping.

(k) Post, chap. 14.

(1 Hawk. P. C. 125.
(m) Stiernh. de Jure Goth. 1. 3, c. 5.
(n) 24 & 25 Vict. c. 96, s. 102.

or prints or publishes any such advertisement, shall forfeit £50 for every such offence, to be recovered, with full costs of suit, by any person suing for the same. (657)

XI. Misprision of felony.

XI. Analogous to the preceding offence is misprision of felony, i.e., the concealment of a felony which a man knows of, but never assented to: for if he assented to it, this makes him either principal or accessory. The punishment of this misprision in a public officer, by the statute Westm. 1, 3 Edw. 1, c. 9, is imprisonment for a year and a day; in a common person, imprisonment for a less discretionary time; and, in both, fine and ransom at the pleasure of the crown: which pleasure must be observed, once for all, not to signify any extrajudicial will of the sovereign, but such as is declared by his representatives, the judges in his courts of justice; "voluntas regis in curia, non in camerá" (0). (658)

XII. Barratry.

XII. Common barratry is the offence of frequently (p) exciting and stirring up suits and quarrels between her majesty's subjects, either at law or otherwise (g). (659) The punishment of this offence, in a common person, is by fine and imprisonment: but if the offender (as is too frequently the case) belongs to the profession of the law, a barrator, who is thus able as well as willing to do* mischief, ought also to be disabled from practising for the future (r). And indeed it is enacted by stat(0) 1 Hale, P. C. 375. (g) 1 Hawk. P. C. 243. (r) Ibid. 244.

[*149]

(p) A man cannot be guilty of barratry in respect of a single act. Hawk. P. C. b. 1, c. 81, s. 5.

(657) The compounding of a felony or other crime is an indictable offense, and no action can be supported on any contract of which such offense is the consideration, either in whole or in part. Hinesburg v. Sumner, 9 Vt. 23; Bell v. Wood, 1 Bay (S. C.), 244; Com. v. Pease, 16 Mass. 91; Plumer v. Smith, 5 N. H. 553. See Bothwell v. Brown, 51 Ill. 234.

The composition of misdemeanors is iflegal as much as that of felonies. Jones v. Rice, 18 Pick. (Mass.) 440. But the mere taking of one's goods back again, or receiving reparation, is no offense, if no favor is shown or agreed to be shown to the thief. Plumer v. Smith, 5 N. H. 553.

The conviction of the principal offender is not necessary in order to sustain an indictment for compounding the offense. People v. Buckland, 13 Wend. 592.

(658) As to misprision of treason, see ante, 390, note 646; ante, 350, note 620. Misprision of felony is regarded as a common-law offense in all the States where common-law offenses are known; but misprision of misdemeanor is unknown either in the language or facts of the law. 1 Bish. Cr. Law, §§ 275, 717. See Marbury v. Brooks, 7 Wheat. 556, 575.

An attorney may be required to disclose any communication made to him, to obtain pro. fessional advice or assistance, as to the commission of a felony or other crime which is malum in se. Such communication is not privileged. People v. Blakeley, 4 Park. 176.

(659) The indictment must charge the offender with being a "common barrator," and it seems that three instances of offending, at least, must be shown. See Com. v. Tubbs, 1 Cush. (Mass.) 2; Com. v. McCulloch, 15 id. 227; Com. v. Davis, 11 Pick. (Mass.) 432; The State v. Chitty, 1 Bailey (S. C.), 379.

A justice of the peace may be indicted, as a common barrator, for exciting criminal prosecutions to be brought before himself as magistrate; and it is not a sufficient defense, that the prosecutions were not groundless, if they were promoted by the justice, with a view to exacting fees for afterward suppressing them. State v. Chitty, 1 Bailey (S. C.), 379.

The offense is a common-law misdemeanor, punishable by fine and imprisonment at the discretion of the court; and in case the offender be an attorney or counselor at law, he ought to be further punished by being disabled to practice for the future. Ib.

ute 12 Geo. 1, c. 29 (made perpetual by 30 & 31 Vict. c. 59), that if any one who has been convicted of forgery, perjury, subornation of perjury, or common barratry, shall practice as an attorney, solicitor, or agent, in any suit; the court, upon complaint, shall examine it in a summary way; and, if proved, the offender is punishable as below mentioned (s). Hereunto may also be referred another offence, of equal malignity and audaciousness; that of suing another in the name of a fictitious plaintiff; either one not in being at all, or one who is ignorant of the suit. This offence, if committed in any of the superior courts, is left, as a high contempt, to be punished at their discretion. But in courts of a lower degree, where the crime is equally pernicious, but the authority of the judges not equally extensive, it is directed by statute 8 Eliz. c. 2, s. 4, to be punished by six months imprisonment, and treble damages to the party injured.

XIII. Maintenance.

XIII. Maintenance is an offence that bears a near relation to the former; being an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it (t): a practice that was greatly encouraged by the first introduction of uses (u). This is an offence against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression. And therefore, by the Roman law, it was a species of the crimen falsi to enter into any confederacy, or do any act to support another's lawsuit, by money, witnesses, or patronage (x). A man may however maintain the suit of his near kinsman,* servant, [*150] or poor neighbour, out of charity and compassion, with impunity. Otherwise the punishment by common law is fine and imprisonment (y); and by the statute 32 Hen. 8, c. 9, a forfeiture of ten pounds (z). (660)

(8) Punishment: penal servitude for a period not exceeding seven, nor less than five, years.

(t) 1 Hawk. P. C. 249.

(u) Dr. & St. 202.
(x) Dig. 48, 10, 20.
(y) 1 Hawk. P. C. 255.

(2) And see stat. 1 Ric. 2, c. 4.

(660) The doctrine of maintenance is founded upon the principle that "combinations against individuals are dangerous in themselves, and prejudicial to the public interests. It is no wrong for an individual to prosecute his rights against another in a court of justice; but it is, notwithstanding, criminal for others to maintain him in his suit; and for the reason that maintenance tends to oppression; that the weak would be endangered by combinations of the powerful and wealthy. Lambert v. The People, 9 Cow. 578, 600; and see Lathrop v. Amherst Bank, 9 Metc. (Mass.) 489, 492; Rust v. Larue, 4 Litt. 411, 426; Thallhimer v. Brinckerhoff, 3 Cow. 623.

Assisting another with money or advice to carry on his cause is an indictable offense; unless the person thus maintaining has some interest in the subject of the suit, or is connected with the suitor in some social relation. See Campbell v. Jones, 4 Wend. 306; Lathrop v. Amherst Bank, 9 Metc. (Mass.) 489; Wickham v. Conklin, 8 Johns. 20; Cummins v. Latham, 4 T. B. Monr. (Ky.) 97, 105; Knight v. Sawin, 6 Greenl. (Me.) 361; Godspeed v. Fuller, 46 Me. 141; Williamson v. Sammons, 34 Ala. 691; McCall v. Capehart, 20 id. 521. Under some circumstances, landlords and tenants, masters and servants, and even neighbors may lawfully assist one another in carrying on a suit. Thallhimer v. Brinckerhoff, 3 Cow. 623. So, it is held that, advancing money to a poor man to enable him to prosecute his suit, is not maintenance. See id.; Perine v. Dunn, 3 Johns. Ch. 508; Bristol v. Dann, 12 Wend. 142.

Maintenance is not recognized as an offense by the laws of California. Matthewson v. Fitch, 22 Cal. 86.

VOL II-54

XIV. Champerty, campi partitio, is a species of maintenance, and punished in the same manner (a): being a bargain with a plaintiff or defendant campum partire, to divide the land or other matter sued for between them, XIV. Champerty. if they prevail at law; whereupon the champertor is to carry on the party's suit at his own expense (b). Thus champart, in the French law, signifies a similar division of profits, being a part of the crop annually due to the landlord by bargain or custom. In our sense of the word it signifies the purchasing of a suit, or right of suing: a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one hath the right but not the possession, is not assignable at common law; because no man should purchase any pretence to sue in another's right (c). (661) Those pests of civil society, who are perpetually endeavouring to disturb the repose of their neighbours, and officiously interfering in other men's quarrels, even at the hazard of their own fortunes, were severely animadverted on by the Roman law, "qui improbe coeunt in alienam litem, ut quicquid ex condemnatione in rem ipsius redactum fuerit inter eos communicaretur, lege Juliá de vi privatá tenentur" (d); and they were punished by the forfeiture of a third part of their goods, and perpetual infamy. Hitherto also must be referred the provision of the statute 32 Hen. 8, c. 9, that no one shall sell or purchase any [*151] pretended right or * title to land, unless the vendor has received the

profits thereof for one whole year before such grant, or has been in actual possession of the land, or of the reversion or remainder; on pain that both purchaser and vendor shall each forfeit the value of such land to the crown and the prosecutor. These offences relate chiefly to the commencement of civil suits; but

XV. The compounding of information upon penal statutes is an offence of an equivalent nature in criminal causes; and is, besides, an additional misde

(a) 1 Hawk. P. C. 257.

(b) Stat. of Conspirat. 33 Edw. 1.

(c) If an attorney prosecute an action, to be paid his costs by a gross sum commensurate

with his trouble, and with the benefit ob-
tained, this would amount to champerty.
Earle v. Hopwood, 9 C. B. N. S. 566.
(d) Dig. 48, 7, 6.

(661) Champerty, like maintenance, is indictable at common law. The offense consists in the unlawful maintenance of a suit in consideration of some bargain to have a part of the thing in dispute, or some profits out of it; and it covers all transactions and contracts, whether by counsel or others, to have the whole or part of the thing or damages recovered. Lathrop v. Amherst Bank, 9 Metc. (Mass.) 489; Holloway v. Lowe, 7 Port. (Ala.) 488; Brown v. Beauchamp, 5 T. B. Monr. (Ky.) 416; Thurston v. Percival, 1 Pick. (Mass.) 416; Barnes v. Strong, 1 Jones' Eq. (N. C.) 100; Wheeler v. Pounds, 24 Ala. 472; Douglass v. Wood, 1 Swan. (Tenn.) 393. The offense may be committed though there has been no suit actually commenced. Rust v. Larue, 4 Litt. (Ky.) 411; see Martin v. Amos, 13 Ired. (N. C.) 201.

A champertous agreement by an attorney at law with a client is void. See Holloway v. Lowe, 7 Port. (Ala.) 488; Byrd v. Odem, 9 Ala. 755; Key v. Vattier, 1 Ohio, 132; Scoby v. Ross, 13 Ind. 117; and see cases cited above,

In New York and some of the other States, the law as to maintenance and champerty is not in force, except as regulated by statute. See Sedgwick v. Stanton, 14 N. Y. (4 Kern.) 289; Voorhees v. Dorr, 51 Barb. 580; Lowe v. Hutchinson, 37 Me. 196; Newkirk v. Cone, 18 Ill. 449; Stoddard v. Mix, 14 Conn. 12; Davis v. Sharron, 15 B. Monr. (Ky.) 64. See, also, Mullen v. Guest, 6 Texas, 275; Danforth v. Streeter, 28 Vt. 490; Wright v. Meek, 3 Greene (Iowa), 472; Key v. Vattier, 1 Ohio, 132.