Page:Harvard Law Review Volume 5.djvu/375

THE JURY A ND ITS DE VEL OP ME NT. 359 not have come voluntarily, but only by way of voucher to war- ranty. There was some difference of opinion among the judges, and the case was adjourned without a decision. 1 But the judges sail certain interesting things. Hals, J., said, " In a tort of main- tenance it is a good plea to say that he who is charged came and prayed us, since we were an old man of the region and had knowl- edge of the title of the land of which he was impleaded, that we would be with him to inform the jury about the title ; and so we did, &c. So here it is good. Cheyne [C.J.] It will be adjudged a maintenance in your cases, because he has no cause or privity for maintaining the controversy more than the merest stranger in the world unless the other had cause of warranty against him. And as to what you say of its being a good plea in maintenance that he is an old man of the region, and having better knowledge of the right and title of this rent, and his coming with the defend- ant to declare his right in the said rent &c, I say that this is a real maintenance; for on such a ground everybody could justify a maintenance, and that would be against reason. But if he had shown a ground of the maintenance on which the law presumes him bound to be with the party, then this would not be adjudged a maintenance, — as if he were with his relation (cosin), or came with one because he was his servent or his tenant. He is bound to be with his servant or tenant ; but it is not so in other cases." 2 The perils of an ordinary witness are further illustrated in a case of 1450 (Y. B. 28 H. VI. 6, 1), in which it was sought to hold cer- tain persons sworn on an inquest, in an action for maintenance. Littleton (counsel) said, " What a man does by compulsion of law cannot be called maintenance ; as where a juror passes for me and against you, &c." Fortescue. C.J., agrees to this, and adds, " If a man be at the bar and say to the court that he is for the defendant, that he knows the truth of the issue and prays that he may be examined by the court to tell the truth to the jury, and the court asks him to tell it, and at the request of the court he says what he can in the matter, it is justifiable maintenance. But if he had come to the bar out of his own head (de son test demesne) and spoken for one or the other, it is maintenance and he will be punished for it. And if the jurors come to a man where 1 Brooke, Ab. Mayntenance, 51, says, " et fuit in matter agree que il est bon barre." % And so (1442-3) in the case of Pomeray v. Abbot of Selby, Y. B. 21 H. VI. 15, 30; s. C. 22 ib. 5, 7.