without re

nizance and recognizances, taken as aforesaid, shall be certified into the said Court of King's Bench, with the said Certiorari certiorari and indictment, to be there filed, and the name of granted the prosecutor (if he be the party grieved or injured), or cognizance, some public officer, to be indorsed on the back of the said void. indictment; and if the person prosecuting such certiorari, being the defendent, shall not, before allowance thereof, procure such manucaptors to be bound in a recognizance as aforesaid, the justices of the peace may and shall proceed to trial of the said indictment at the said sessions, notwithstanding such writ of certiorari so delivered.

shall have double costs.

III. And be it further enacted, that if the defendant Officers proprosecuting such writ o certiorari be convicted of the secuting, offence for which he was indicted, that then the said Court of King's Bench shall give reasonable costs to the prosecutor, if he be the party grieved or injured, or be a justice of the peace, mayor, bailiff, constable, headborough, tithingman, churchwarden, or overseer of the poor, or any other civil officer, who shall prosecute upon the account of any fact committed or done, that concerned him or them as officer or officers, to prosecute or present, which costs shall be taxed according to the course of the said court; and that the prosecutor, for the recovery of such costs, shall, within ten days after demand made of the defendant, and refusal of payment on oath, have an attachment granted against the defendant by the said court for such his contempt; and that the said recognizance shall not be discharged till the costs so taxed shall be paid.

able in vaca

tion.

IV. Provided always, and be it enacted by the authority Certioravi, aforesaid, that in any of the vacations, writs of certiorari how grant may be granted by any of the justices of their majesties' Court of King's Bench, whose names shall be indorsed on the said writ, and also the name of such person at whose instance the same is granted, and that the party or parties indicted, prosecuting such certiorari, shall, before the allowance of such writ or writs of certiorari, find such sureties, in such sum, and with such conditions, as are before mentioned and specified in this present act.

granted.

V. And be it further enacted, by the authority aforesaid, Certiorari that upon every certiorari granted or awarded within the in Chester, counties palatine of Chester, Lancaster, or Durham, to &c. bow remove indictments or presentments of any of the matters aforementioned, all the parties indicted, prosecuting such certiorari, shall find such sureties, to be bound in such sums, and with such respective conditions, and at his or their own costs and charges, shall cause and procure the issue joined upon the said indictments or presentments to be tried at the next assizes or general gaol delivery to be held for the said respective counties, and shall give like notice to the prosecutor, and, if convicted, shall be liable to like costs, to be taxed as is by this act provided for in

To continue for three years.

cases where the same are granted or awarded out of the Court of King's Bench at Westminster.

VI. Provided always, and be it enacted by the authority aforesaid, that if any indictment or presentment be against any person or persons for not repairing of any highways, causeways, pavements, or bridges, and the right and title to repair the same may come in question, upon such suggestion, and affidavit made of the truth thereof, a certiorari may be granted to remove the same into the Court of King's Bench, any law or statute to the contrary in any wise notwithstanding. Provided, nevertheless, that the party or parties prosecuting such certiorari shall find two manucaptors to be bound in a recognizance, with condition as aforesaid.

VII. Provided always, and be it enacted by the authority aforesaid, that this act shall continue and be in force for three years, and from thence to the end of the next session of parliament, and no longer. (Made perpetual by 8 & 9 Will. 3, c. 33.) Note. The directions of this act as to recognizances are not in practice pursued, where the crown takes up the defence of the defendant: 6 Ev. Stat. 264. In common cases, it is usual to take the recognizance in £20 from each of the manucaptors. But the amount of the costs to be taxed is not limited by the recognizance, which is only a further security for them: R. v. Teal, 13 East, 4. To entitle the prosecutor to costs under this statute, it is enough to prove that he was such by affidavit, without his name being indorsed on the indictment, as mentioned in the first section: R. v. Smyth, 1 Burr. 54. And as taxed costs are a debt actually vested, the representatives of the prosecutor are entitled to costs taxed during his life, though no personal demand was ever made by him: 1 T. R. 103. Moreover, as the defendant must suffer the consequences of his own certiorari, and as it is a part of the prosecution to carry it to its legal conclusion, the costs of conveying him to gaol in execution of his sentence are reasonable costs within the sta

tute: R. v. Gilbie, 5 M. & S. 520. On the other hand, it may be observed, that the word "convicted," in the second section, means convicted by judgment," and therefore, if after a verdict of guilty the judgment be arrested, no costs can be taxed for the prosecution: R. v. Turner, 15 East, 570. As to who shall be considered parties grieved, &c., see R. v. Kettleworth, 5 T. R. 38; R. v. Williamson, 7 T. R. 32 ; R. v. Dewsnap, 16 East, 194; R. v. Incledon, 1 M. & S. 268; R. v. Taunton, 3 M. & S. 465. In the construction of the sixth section of this statute, it has been held, that upon an indictment against a parish for not repairing a highway, the right to repair may come in question, so as to entitle the parish to remove it by certiorari, though the parish plead not guilty only; it being stated in an affidavit filed by the defendants, that on the trial of the indictment, the question whether the parish were liable to repair, and the right to repair, would come in isue: R. v. Taunton St. Mary, 3 M. & S. 465.

8 & 9 Will. 3, c. 33.

Whereas an act made in the fifth and sixth years of the reign of King William and the late Queen Mary, intituled An Act to prevent Delays of Proceedings at the Quarter Ses. sions of the Peace, which was to continue and be in force for three years, and from thence to the end of the next ses- Act 5 & 6 sion of parliament, by experience hath been found useful W. & M. c. and beneficial; therefore, for continuing the same, be it enacted, &c., that the said act shall be, and is hereby continued, and shall be in force and made perpetual.

11, made

perpetual.

remove an

captors to

II. And, for the making the purpose and design of the Party prosaid act more effectual, be it enacted, by the authority secuting any aforesaid, that from and after the 21st day of April, which certiorari to shall be in the year of our Lord 1697, the party or parties indictment, prosecuting any certiorari, to remove any indictment or may find presentment from the quarter or general sessions of the two manupeace, may find two sufficient manucaptors, who shall enter enter into into a recognizance before any of his majesty's justices of recogni the Court of King's Bench, in the same sum, and under the zance, &c. same condition, as is required by the said act, whereof mention shall be made on the back of such writ, under the hand of the justice taking the same, which shall be as effectual and available, to all intents and purposes, to stay or supersede any further proceedings upon any indictment or presentment, for the removal of which the said writ of certiorari shall be granted, as if the recognizance had been taken before any one of the justices of the peace of the county or place where such indictment was found or presentment made; and also it shall be added to the condition of every recognizance taken by virtue of this and the said act, that the party or parties prosecuting such Party to ap writ of certiorari shall appear from day to day in the said pear daily Court of King's Bench, and not depart until he or they shall in the King's be discharged by the said court.

Bench Court, until discharged.

CHAMPERTY.

(See also tit. "Maintenance.")

3 Ed. 1, c. 25.

ster, 1.

No officers of the king, by themselves nor by other, shall Satute, maintain pleas, suits, or matters, hanging in the king's Westmin. courts, for lands, tenements, or other things, for to have part or profit thereof by covenant made between them; and he that doth shall be punished at the king's pleasure.

Note. By the courts mentioned in this statute, it has been held that courts of record only are intended; and it has also been held, that under the word covenant all

D

kinds of promises and contracts of this kind are included; that maintenance in personal actions, to have part of the debt or damages, is as much within the statute as main

tenance in real actions for a part of the land; and that, though a grant of rent out of other lands is not within the statute, yet the statute applies to a grant of rent out of the lands in question; but that a grant of part of a thing in suit, made in consideration of a precedent debt, is not within its meaning: 1 Russ. 179. A grant, indeed, of the last-mentioned description cannot easily be tainted with champerty; and the case of Hartley v. Russell, which will be noticed presently, seems illustrative of this remark.

Champerty is an offence at common law, 2 Inst. 208, and is usually defined to be the unlawful maintenance of a suit in consideration of a bargain for part of the thing in dispute, or some profit out of it:

Statute, Westminster, 2.

1 H. P. C. 145; 15 Ves. 156; 18 Ves. 120. Thus, where an attorney agrees to maintain a suit, upon an understanding that, in the event of success, his client shall make a beneficial conveyance to him of the subject of the suit, this is champerty: Wood v. Downes, 18 Ves. 120. But where B. and C. are creditors of A., and B. having instituted proceedings against A., agrees with A. to abandon those proceedings and give up his securities in consideration of A. giving him a lien on certain securities in the hands of C., with authority to sue C.; this is not champerty, but a mere agreement that A. shall assign his equity of redemption in the securities held by C., in exchange for the securities held by B.: Hartley v. Russell, 2 S. & S. 244.

13 Ed. 1, c. 49.

"The chancellor, treasurer, justices, nor any of the king's counsel, no clerk of the chancery, nor of the exchequer, nor of any justice or other officer, nor any of the king's house, clerk ne lay, shall not receive any church, nor advowson of a church land, nor tenement in fee, by gift, nor by purchase, nor to farm, nor by champerty, nor otherwise, so long as the thing is in plea before us, or before any of our officers, nor shall take no reward thereof. And he that doth contrary to this act, either himself or by another, or make any bargain, shall be punished at the king's pleasure, as well he that purchaseth as he that doth sell."

Note. This statute extends only to the officers therein named: 1 Russ 180.

28 Ed. 1, s. 3, c. 11.

Nothing shall be taken to maintain any matter in suit. The king will that no officer, nor any other (for to have part in the things in plea) shall not take upon him the business that is in suit; nor none, upon any such covenant, shall give up his right to another; and if any do, and he be attainted thereof, the taker shall forfeit unto the king so much of his lands and goods as doth amount to the value of the part that he hath purchased for such maintenance. And for this atteindre, whosoever will shall be received to sue for the king before the justices before whom the plea hangeth, and the judgment shall be given by them. But

it may not be understood hereby, that any person shall be prohibited to have counsel of pleaders, or of learned men in the law, for his fee, or of his parents or next friends.

Note. Upon this statute it seems to be agreed, that champerty in any action at law is within it; and a purchase of land, pending a

33 Ed. 1, s. 3.

suit in equity concerning it, has also been holden to be within the statute: 1 Russ. 181.

Whereas it is contained in our statute, that none of our court shall take any plea to champerty by craft nor by engine, and that no pleaders, apprentices, attorneys, stewards of great men, bailiffs, nor any other of the realm, shall take for maintenance, or the like bargain, any manner of suit or plea against other, whereby all the realm is much grieved, and both rich and poor troubled in divers manners, it is provided by common accord, that all such as from henceforth shall be attainted of such emprises, suits, or bargains, and such as consent thereunto, shall have imprisonment of three years, and shall make fine at the king's pleasure.

32 Hen. 8, c. 9.

Be it enacted, &c., that from henceforth all statutes heretofore made concerning maintenance, champerty, and embracery, or any of them, now standing and being in their full strength and force, shall be put in due execution, according to the tenures and effects of the same statutes.

II. And over that, be it further enacted, by the authority aforesaid, that no person nor persons, of what estate, degree, or condition soever he or they be, shall from henceforth bargain, buy, or sell, or by any ways or means obtain, get, or have any pretenced rights or titles, or take, promise, grant, or covenant to have any right or title of any person or persons in or to any manors, lands, tenements, or hereditaments (except such person or persons which shall so bargain, sell, give, grant, covenant, or promise the same, their ancestors, or they by whom they claim the same, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents or profits thereof, by the space of one whole year next before the said bargain, covenant, grant, or promise made), upon pain that he that shall make any such bargain, sale, promise, covenant, or grant, to forfeit the whole value of the lands, tenements, or hereditaments, so bargained, sold, promised, covenanted, or granted, contrary to the form of this act; and the buyer and taker thereof, knowing the same, to forfeit