Action.
52 PAET
YIII.
Maintenance and Champerty.
A
person who was a
suits or quarrels
common mover, exciter or maintainer common barrator, and was guilty
was called a
of of
the offence of barratry (s). This was an indictable offence (t) and punishable by fine and imprisonment (u) it is now practically obsolete. Maintenance is a misdemeanour punishable by fine and imprisonment at common law, and is forbidden by various statutes {v) it is also an actionable tort rendering the maintainer liable in damages to the other party to the action {w). Such liability in no way depends upon the result of the action (x), nor upon the honesty of the maintainor's motives (^r). But the fact that a plaintiff' is being " maintained " by a third. person is no answer to his action. The doctrine of maintenance is based upon considerations of public policy (6). It has no application to criminal proceedings (c), and in the case of civil proceedings there cannot be " maintenance " in the strict sense of the term until the action is commenced (d) but a person who, without reasonable and probable cause, instigates another to bring an action, incurs a civil liability to the defendant similar to that incurred by a maintainer (e). In recent years actions for maintenance have been successfully instituted against a person who gave a bond of indemnity to a common informer who w^as suing the plaintiff for penalties (/), against a trade union which brought an action in the name of a
Barratry. Liability for
maintenance.
What amounts
to
maintenance.
member member
against his emjDloyer in respect of an alleged libel on the contained in a letter to the union's secretary (g), and against a director who provided money to bring a libel action in respect of adverse criticisms upon a report made by an expert as to certain appliances sold by the director's company (li). Exceptions to rule that
maintenance is illegal.
82. There are, however, certain specific exceptions to the general maintenance, which have at various times
rule of law against
4 Bl. Com. 1 33. As to barratry by the master of a ship or the Ciiiminal Law and Procedure Shipping and Navigation. (0 Com. Dig. Barretry (C); Ym. Abr. Barretors (B). (n) Bac. Abr. Barratry (C).
(s)
Co. Litt. 3H8b
sailors, see titles
1 Edw. 3, 13 Edw. 1, e. 49; 28 Edw. 1, stat. 3, c. 11 1, c. 25 1 Eich. 2, c. 4; 7 Eich. 2, c. 15; 32 Hen. 8, c. 9. 14 20 Edw. 3, c. 4 It has, howevei-, been said that these statutes are merely declaratory of the common law, with additional penalties {FecheU. Watson (1841), 8 M. & W. 691
(v)
3
Edw.
stat. 2, 0.
Strange (1552), Plowden, 77, 88). PecheJl v. Watson, supra; Bradla/tgh v. Newdeqate (1883), 11 Alabaster v. Harness, [1894] 2 Q. B. 897,' [18951 1 Q. B. 339 Harris Q. B. D. 1 V. Brisco (1886), 17 Q. B. D. 504. (x) BradJaiigJi. v. Newdeyate, supra. (a) Alabaster v. Harness, supra. (b) Per Lord Esher, M.E., in Alabaster v. Harness, [1895] 1 Q. B. 339, at Wallis v. Portland (Puke of) (1797), 3 Yes. 494. p. 342 (c) Grant v. Thompson (1895), 72 L. T. 264, disagreeing with a dictum of Lord Coleridge, C.J., in Bradlaugh v. Newdegate, supra. Therefore a solicitor can sue upon an indemnity given by a third party to cover the solicitor's costs of conducting a certain prosecution in the name of a client {ibid.). (d) Flight V. Le77mn (1843), 4 Q. B. 883. (e) PechellY. Watson, supra; Flighty. Leman, swpra ; Cotterell Jones (1851), 11 C. B. 713; Oreig v. National Amalgamated Union of Shop Assistants (1906), 22 T. L. E. 274. (/) Bradlaugh v. Newdegate, supra. (g) Oreig Y. National Amalgamated Union of Shop Assistants, supra. (h) Alabaster v. Harness, supra
Partridge {tu)
v.
See,
e.g.,
.
