a sum in their examination? unless, indeed, the object is to place them on the Register, when the figures would be quite normal. Such a case could never occur under the ordinary practice, with regard to lands of such small value, in a transaction between vendor and purchaser or mortgagor and morgagee. In the instance alleged, the object was to cut the land up into building lots, and such great elaboration was employed with a view to getting the thing so thoroughly done once for all, that the numerous subsequent purchasers of the building lots might be satisfied without any examination of the title at all:- -as Sir Robert Torrens confesses that they in fact were. He adds, indeed, that if these purchasers had afterwards wanted to sell or mortgage their plots, they would have been obliged to go through the whole frightful experience de novo; but in this he was completely mistaken. There is no difficulty at all under the present practice in finding purchasers, and not much in finding mortgagees, who are willing, under such circumstances, to accept the assurance that the previous examination of the title was properly conducted to a satisfactory conclusion, if the matter was carried out by a solicitor of good standing and repute.

What opinion should we be expected to form of the good sense and sobriety of judgment of any one, who either thinks that there is no great hazard in the prosecution of Lord Halsbury's scheme, or else is willing to run the risk for the sake of conferring upon one or two owners of building estates a benefit of which they stand in no need? The promised blessings have already been introduced into the common practice. When any considerable tract of land is to be cut up into building plots, the title is now usually examined once for all by a local solicitor of good standing, and an 'Estate Office' is formed under his management; where purchasers and lessees find a much better imitation of that ideal ease, speed, and cheapness, than any which the authors of schemes of official registration have ever brought to pass hitherto. The opinion is at least plausible, that the experience of the past will be repeated in the future, if Lord Halsbury should be allowed to make the trial. In England, private enterprise has always succeeded much better than, and much better when unfettered by, State interference.

The fate of Lord Halsbury's Bill rests with the House of Lords; and a modest hope is entertained that the foregoing remarks may perhaps enable some among their lordships to obtain a clearer view of the true bearings of the situation than they could gather from the explanations of the Lord Chancellor: who, indeed, necessarily labours under the disadvantage of having no practical acquaintance with the subject. Of one thing their lordships may feel confidently

assured, if the unanimous evidence of everybody who knows anything about the subject can suffice to assure them; namely, that if they should resolve to reject this Bill, or at least the compulsory clauses of it, there will not be the slightest reason why 'the people' should on that account think the House of Lords hostile or indifferent to their interests. When Lord Salisbury last year solemnly warned them that this might be the consequence of their reluctance to swallow Lord Halsbury's nostrum, he was, to use a vernacular expression, talking nonsense of which he is perhaps now somewhat ashamed, and which he would perhaps not now care to repeat.

H. W. CHALLIS.

THE LAW OF MAINTENANCE AND CHAMPERTY.

THE

HE growth of large railway companies and other powerful trading corporations has in recent years brought into prominence the hardship that may be inflicted upon suitors by the costliness of litigation. It is said that a solicitor acting for a large railway company remarked to an opponent who had successfully sued the company in the County Court, 'By the time we get to the House of Lords you will be sorry that you won this case,' and it is commonly thought that wealthy companies will fight every case, good or bad, in the hope of exhausting their opponent's means before the ultimate tribunal is reached, or at least of deterring others from prosecuting actions against them.

Now our existing law of maintenance and champerty has a serious bearing on this question, for though directed against great evils, this law does undoubtedly tend to deprive the poor of a means of meeting the rich on equal terms in litigation by obtaining the assistance of others who believe in the probable success of their suit. A gratuitous assistance from charitable motives may, it is true, be afforded to another man in the conduct of his cause, but the only kind of assistance which is applicable to all cases or which could become at all general would be one based upon the sound commercial footing of adequate remuneration commensurate to the outlay and risk involved. A solicitor can hardly be expected readily to advance to a needy client the money necessary to prosecute a claim which however honest may possibly fail, with the prospect of losing his money in the event of failure and getting no more than his ordinary costs in the case of success; yet any agreement, however fair, for remuneration dependent on success or varying in proportion to the property recovered is void for champerty. The consequence is that in many cases a poor suitor (not perhaps quite poor enough to sue in formâ pauperis, and even if he were, not able to afford expenses unavoidable even in that case) is either forced to give up all idea of enforcing his right, or is driven into the hands of the hedge-lawyers.

From this point of view it is proposed to review briefly the history of the English law of maintenance and champerty, in order to show against what evils it was originally directed, on what grounds it has since been supported, and how far those evils have become obsolete or those grounds have ceased to be reasonable.

Maintenance (which includes Champerty) is a species of inter

ference with the course of public justice, of which perjury and tampering with juries are other instances, and is so classed by Blackstone. Its earlier meaning seems to have been almost as wide as, if not wider than, the genus to which it belongs, for according to Lord Coke (Littleton 368 b) it signifieth in law a taking in hand, bearing up or upholding of quarrels and sides, to the disturbance or hindrance of common right' and 'is twofold, one in the country, another in the Court,' an instance of the former being the wrongful taking possession of land; indeed in this sense it would seem that every wrongful act is in one aspect an act of maintenance; the latter sort of maintenance (i. e. curialis) included, according to Lord Coke, labouring or intimidating the jury, which is now classed as a distinct offence under the name of ' embracery.'

A definition in the more limited sense in which the word is generally understood, not differing materially from other definitions, is given by Sir J. F. Stephen in his Digest of the Criminal Law:

'Maintenance is the act of assisting the plaintiff in any legal proceeding in which the person giving the assistance has no valuable interest, or in which he acts from any improper motive.'

'Champerty is maintenance in which the motive of the maintainor is an agreement that if the proceeding in which the maintenance takes place succeeds, the subject matter of the suit shall be divided between the plantiff and the maintainor 1.'

Maintenance is an offence by the Common Law (see 2 Coke, Institutes 208, and numerous modern decisions). Bracton, who wrote in the reign of Henry III, about the middle of the thirteenth century and therefore before any of the statutes on the subject, refers to it in a passage cited by Lord Coke and beginning' De excessibus vic' (i. e. vicecomitum-the sheriffs) et aliorum balivorum' (officers) si quam litem suscitaverint' etc. Lord Coke also refers to Fleta, Britton, and the Mirror, which were however subsequent to the First Statute of Westminster (3 Edw. I. A.D. 1275) which is the first of a series of statutes dealing with maintenance.

In these books, as well as in the statutes which follow, it is officers of the king or great men who are exclusively or mainly contemplated as committing the offence, and the evil is not the mere fostering of litigation but the perversion or hindrance of justice in the Courts. In the Mirror, for instance, Tous ceux

1 In Bacon's Abridgment there is given a derivation of Champerty from the French Champart,' which has an entirely different meaning relating to the division of the produce of the soil between landlord and tenant. Both are of course from 'campi partitio.'

ministers le roy que maintenent faux actions, faux appeales, aut faux defences a exient.'

Champerty was of course a fortiori an offence against the Common Law (Coke, ib.).

The Statute of Westminster the First (3 Edw. I. A. D. 1275) is, in the words of Lord Coke, the foundation of all the acts and book cases that ensued.' The chapters relevant to this subject are placed among a number of others all directed against oppression by officers of the king, among whom according to Lord Coke the judges were included, whether by disscising a man of his freehold without authority (c. 24), or by taking rewards for performing their duties (c. 26), or by levying black-mail in one way or another, and there are several chapters dealing with the evil influence of these personages in the king's courts. Chapter 25 (translated) is 'No officer of the king by themselves, nor by other, shall maintain pleas suits or matters hanging in the king's courts for lands tenements or other things' (thus not confined to actions relating to land) for to have part or profit thereof by covenant made between them, and he that doth shall be punished at the king's pleasure.' This is champerty pure and simple.

Then by chap. 28 it is provided that 'None of the king's clerks, nor of any justicer, from henceforth shall receive the presentment of any church for the which any plea or debate is in the king's court,' and that no clerk of any justicer or sheriff take part' (quaere, the original is 'mainteine parties') in any quarrels of matters depending in the king's court, nor shall work any fraud whereby common right may be delayed or disturbed,' and then follows the punishment. Chapter 29 deals with deception of the court by any serjeant or pleader or other, which unlawfull shifts and devises,' Lord Coke says, were specially common in the cases of great men; chapter 30 treats of the taking of money by subordinate officers of the court; and by chapter 33 'it is provided that no sheriffe shall suffer any barretors or maintainers of quarrels in their shires, neither stewards of great lords nor other (unless he be attorney for his lord) to make suit, nor to give judgments in the counties, nor to pronounce the judgments,' etc., which points to the perversion of justice in the shire courts by powerful maintainers.

The Statute of Westminster the Second (13 Edw. I. A.D. 1285), in chap. 49, contains an absolute prohibition of any purchase of the subject-matter of a suit pendente lite, whether by way of champerty or not, by The chancellor, treasurer, justices, nor any of the king's council, no clerk of the chancery, nor of the exchequer, nor of any justice or other officer, nor of any of the king's house, clerk ne lay'; whereas any other person might then have pur