[*233] *barretor; (9) and that he the said C. B. on the said, &c. and on divers other days and times at, &c. aforesaid, divers quarrels, strifes, suits, and controversies among the honest and quiet liege subjects of our said lord the king, then and there did move, procure, stir up, and excite, to the evil example, &c. and common nuisance of the liege subjects of our said lord the king, (r) and also against the peace, &c. (s) [*234] For main *MAINTENANCE. That A. O. late of, &c. on, &c. with force and arms, at, &c. tenance of aforesaid, did unjustly and unlawfully maintain and uphold a cer Lit. 368. But a man cannot be thus guilty in respect of a single act, Hawk. b. 1. c. 81. s. 5. 2 Saund. 308. n. 1. Nor can an attorney be in dicted for this crime, merely from maintaining another in a groundless action, 3 Mod. 97, 8. It has been said that feme coverts cannot be thus indicted, 2 Rol. Rep. 39, but the better opinion seems to be otherwise, for as they are able to excite quarrels they ought to answer for them. Hawk. b. 2. c. 81. s. 6.—Indictment. The case of Barretry is one of those excepted instances where it is not necessary to charge any specific act, but the allegation that the defendant is a Common Barretor will suffice; the reason of which is, that the offence charged consists in habitual conduct, and not in a single malfeasance, 1 T. R. 754. 2 Saund. 308. n. 1. Hawk. b. 2. c. 23. S. 59. But the prosecutor must, be fore the trial, inform the defendant by a notice of the particular acts on which he intends to rely, or the court will not suffer him to proceed, 1 T. R. 754. 2 T. R. 586, 2 Saund. 308. n. 1. 1 New Rep. 93. 95. 2 Atk. 339. 5 Mod. 18. and no other acts can be given in evidence than those thus specified, 6 Mod 622. No place need be specified in the indictment, because the accusation involving se veral acts may fairly be supposed to have occurred at several places, and therefore the trial must be from the body of the county, 2 Saund. 308. n. 1. Hawk. b. 2. c. 81. s. 12. The indictment must conclude contra pacem, 2 Saund. 308. n. 1. Cro. J. 527. Justices of the peace have authority to try and determine this offence by virtue of their commission, Yelv. 46. Cro. Jac. 32.-Punishment. Common persons, convicted of this offence, are punishable by fine and imprisonment. Hawk. b. 2. c. 81. s. 14. But if they belong to the profession of the law they will be disabled from practising in future, id. ibid. And by 12 Geo. I. c. 29. s. 4. if any one who has been convicted of common barretry practise as an attorney, solicitor, or agent in any suit, the court upon complaint, shall examine it in a summary way, and if proved shall direct the offender to be transported for seven years. (q) These words are absolutely requisite, and cannot be supplied by any words which have the same signification, 1 Sid. 282. 6 Mod. 311. 2 Saund. 308. n. 1. (r) The indictment must state this in the conclusion, 2 Stra. 1246. (s) This is material, Cro. Jac. 527. 2 Saund. 308. n. 1. The indictment need not conclude "contrary to the form," &c. but if it does it will not be vitiated by that allegation; as, though the offence existed at common law, the mode of trial is regu lated by statute, Cro. Eliz. 148.Cro. Car. 340. Cro. C. C. 8th Ed. 40. tain suit, which was then depending in the court of our said lord an action of debt. (t) the king, before the king himself, between A. P. plaintiff and A. D. defendant, in a plea of debt, on the behalf of the said A. P. against the said A. D. contrary to the form of the statute (u) in such case made and provided, and to the manifest hindrance and disturbance of justice, and in contempt, &c. to the great damage of the said A. D. and against the peace, &c. ment in the and a bill That one L. P. late of, &c. yeoman, on, &c. and for the space The like for mainof one whole year then next following, at Westminster, in the tenance of county of Middlesex, maintained a certain action then pending in an action of ejectthe court of our said lord the king of his exchequer, before his barons of the said exchequer, between one C. W. plaintiff, and exchequer one D. L. defendant, of a plea of trespass and ejectment of farm, in equity. of one hundred acres of land, &c. to the great damage of the said (x) C. W. in contempt of our said lord the king and his laws, against the form of the statutes, &c. and against the peace, &c. [Second count,] maintained on the part of D. J. and W. J. a certain suit by English bill, in the court of chancery of our said lord the king at Westminster, in the county of Middlesex, pending between D. J. and W. J. the complainants, and D. L. the defendant of and concerning the title to the said tenements, in contempt, &c. [*235] against the form, &c. and against the peace, &c. * (t) See Precedents. Burn, J. Maintenance. 2 Stark. 678. Trem. P. C. 178. Winch. 504. 538. West. 89. 137. 312, 313. 351. Herne, 493, 4. Rast. Ent. 431. Co. Ent. 364, 5.The offence. See, in general, Hawk. b. 2. c. 83. Com. Dig. Maintenance. 4 Bla. Com. 134, 5. Burn, J. Maintenance. Williams, J. Maintenance. 4 Term. Rep. 340. Maintenance signifies a malicious, or at least officious, interference in a pursuit in which the party has no interest, to assist either with money or advice to prosecute or defend the action, 4 Bla. Com. 134, 5. Hawk. b. 2. c. 83. 4 T. R. 340. Maintenance is an of fence at common law, Hawk. b. 2. c. 83. s. 38. and further prohibited, on pain of fine and imprisonment, by 1 Edw. III. c. 14. 20 Edw. III. c. 4. 1 Rich. II. c. 4. 32 Hen. VIII. c. 9. Champerty is an offence of a simi lar description, but of greater atrocity, being a bargain to divide the land (campum partire) or other subject in dispute, on condition of his carrying it on at his own expence, 4 Bla. Com. 135. It is subject to the same punishment with maintenance, id. ibid. See also Com. Dig. Maintenance, Bac. Ab. Champerty. Burn, J. Maintenance, and Williams, J. Maintenance. (u) See the statutes referred to in note (t) supra. In the next precedent the indictment concludes against the form of the statutes in the plural. (x) See notes to last precedent, and Trem. P. C. 178. FOR DISSUADING A WITNESS TO GIVE EVIDENCE. DissuadThat on, &c. a certain writ of our said lord the king, called a ing a witRess from subpoena ad testificandum, had been and was duly issued and testgiving evi- ed by and in the names of C. D. of, &c. at, &c. the same day and dence against a year aforesaid, the said C. D. then and there being custos rotuperson inlorum in and for the said county, which said writ was directed to dicted.(y) E. S. and G. H. by which said writ our said lord the king commanded, &c. (recite the writ.) And the jurors, &c. do further present, that a copy of the said writ was on, &c. at, &c. duly served on the said I. K. who then and there had notice to appear and give evidence according to the exigency of such writ, and that the evidence of said I. K. at the time of issuing the said writ, and from thence until and upon the said, &c. therein mentioned, was material and necessary to have been given before the said grand jury, on the said bill of indictment, so to be preferred against the said A. B. as aforesaid, and that at the sessions of the peace holden by adjournment, at Saint Mary, Newington, aforesaid, in and for the said county of Son, &c. aforesaid, such bill of indictment was preferred against the said A. B. to and before a certain grand jury then and there duly assembled in that behalf. And the jurors, &c. do further present, that A. B. late of, &c. being an evil disposed person, and contriving and intending to obstruct and impede the due course of justice, on, &c. at, &c. unlawfully and unjustly dissuaded, hindered, and prevented the said I. K. from appearing before the said justice at the said sessions of the peace, holden as aforesaid, to testify the truth and give evidence before the said grand jury, on the said bill of indictment, so preferred against the said A. B. as aforesaid (and the said I. K. in consequence thereof did not so appear and give evidence according to the exigency of said writ); to the great [236] obstruction, hinderance, and delay of public justice, in contempt, * (y) This is an offence indictable at common law, Hawk. b. 1. c. 21. s. 15. The mere attempt to stifle evidence is also criminal, though the persuasion should not succeed, on the general principle now fully established, that an incitement to com mit any crime is itself criminal, 6 East, 464. 2 East, 5. 21, 2. 2 Stra. 904. 2 Leach, 925. for a conspiracy to prevent a witness from giving evidence, 2 East, 362. knowingly making use of a false affidavit is indictable, 8 East, 365. 2 Stra. 1144. &c. to the evil, &c. and against the peace, &c. And the jurors aforesaid, upon their oath aforesaid, do further present, that on the said, &c. a certain other writ of our said lord the king had duly issued, directed to the said E. F. and G. H. by which said last mentioned writ, our said lord the said king commanded the said E. F. and G. H. that, &c. [recite the writ.] And the jurors, &c. do further present, that the evidence of the said I. K. at the time of issuing the said last mentioned writ, and from thence until, and upon the said, &c. therein mentioned, was material and necessary to have been given before the said grand jury, in the said bill of indictment, so to be preferred against the said A. B. as aforesaid. And the jurors, &c. do further present, that the said A. B. being an evil disposed person, &c. [same as first count, saying "endeavoured to dissuade," &c. and omitting the allegation between the brackets.] AGAINST JUSTICES FOR OPPRESSION, &c. tion a the peace for causing to be pub. [Commencement of information as ante 7*, and then state that Informa. the defendant on, &c. was one of the justices, &c. as ante 182*.] gainst a And that he the said T. M. being such justice as aforesaid, and justice of being a person of a wicked and malicious mind and disposition, and having no regard to justice, nor to the duty of his said office a woman as such justice of the peace, but unlawfully, wickedly, and ma- licly whipliciously devising, and intending to discredit, disgrace, aggrieve, ped as a disorderly and oppress one M. M. of, &c. single woman, and to expose the person, said M. M. to ignominy, shame, and scandal, and disgrace, did on, any view, &c. with force and arms, at, &c. aforesaid, unjustly, unlawfully, informawickedly, and maliciously, and without any reasonable or pro- proof exhibable cause whatsoever, under mere colour and pretence of his bited asaid office as such justice as aforesaid, cause and procure the said (z) See other Precedents. Cro. C. C. 242 to 246. Cro. C. A. 232, 5.Plead. Ass. 426. 4 T. R.451. Hand. Prac. 97. 4 Wentw. 418 to 430.6 Wentw. 455 to 460. Stark. 567 to 576.-The offence. If a magistrate abuses his authority from corrupt motives, he is punishable criminally by indictment or information, 4 Bla. without tion, or gainst her. M. M. (being a young woman about the age of fifteen years, and being a person of good name, fame, credit, and reputation, and in the peace of God and our said lord the king) to be taken into custody, imprisoned, and stripped quite naked down to her waist; and to be unlawfully, publicly, cruelly, and severely whipped and lashed upon her naked back, with divers whips and cords by one J. R. then being the common beadle of the parish aforesaid, at a certain common whipping post then erected, and being in the common market place of the town of B. in, &c. aforesaid, in the presence and view of a great number of people then and there as sembled and gathered together, as a loose, idle, and disorderly person, (the said fifth day of May, in the year aforesaid, being a public market day in the said town of B.) by means of which said whipping and lashing the back and shoulders of the said M. M. were greatly cut, bruised, and wounded; and the said M. M. by means of the premises became sick, weak, and distempered, and lost a great quantity of blood, which issued and flowed from the said cuts and wounds; whereas in truth and in fact, neither the said T. M. nor any other justice of the peace of our said lord the king, in and for the said county of S. or elsewhere, had then and there any knowledge by his or their own view, or had then or there received or taken any information, examination, or other evidence upon oath whatsoever, that the said M. M. was or had been a loose, idle, or disorderly person, and whereas in truth and in fact the said M. M. never was a loose, idle, or disorderly per son; to the great damage, scandal, and discredit of the said M. M. in contempt, &c. in manifest violation of the liberties of the subjects of our said lord the king of this realm, to the great per tion unless the prosecutor will undertake to bring no action, and the application be made within the second term after the offence committed, and notice of the intention to make it be previously given to the justice, id. ibid. and ante 1 vol. Index Information. But where they have acted partially, maliciously, or corruptly, they are liable to an indictment, 1 T. R. 692. 1 Burr. 556. 3 Burr. 1317. 1716. 1786. 1 Wils. 7. And, in some cases, a mere improper interference appears to be thus cognizable. Thus where two sets of magistrates have a concurrent ju risdiction, and one set appoint a meeting to licence alehouses, their jurisdiction attaches, so as to exclude the others, though they may all meet together on the first day; and if, after such appointment, the other set meet and grant other licences on a subsequent day, the proceeding is illegal, and subjects them to an indictment, 4 T. R. 451.-Indictment. It is sufficient, in an indictment against any officer, to aver that he being such, &c. committed the offence, 5 T. R. 623. and proof that he acted as such would suffice, 4 T. R. 366. |