Imatges de pàgina
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And as to the objection that the quantity purchased could not constitute the offence of ingrossing unless it bore such a proportion to the consumption of the whole kingdom as would affect the general price, his Lordship said, that the objection was new to him: but that if the opinions of Lord Mansfield, Mr. Justice Dennison, and Mr. Justice Foster, were deserving of attention, there was as little in that objection as in the rest. That he well remembered an information moved for before them against certain persons, for conspiring to monopolize or raise the price of all the salt at Droitwich: and that they had no doubt of its constituting an offence, although it was not pretended that these persons had endeavoured to ingross all or any considerable part of the salt in the kingdom.

After referring to the conflict of political opinion upon the subject of these laws, Lord Kenyon proceeded thus :-"But without "attending to disputed points, let us state fairly what this case “ really is, and then see if it be possible to doubt whether the "defendant has been guilty of any offence. Here is a person "going into the market, who deals in a certain commodity. If "he went there for the purpose of making his purchases in the "fair course of dealing, with a view of afterwards dispersing the "commodity which he collected, in proportion to the wants and "convenience of the public, whatever profit accrues to him from “ the transaction, no blame is imputable to him. On the contrary, "if the whole of his conduct shews plainly that he did not make "his purchases in the market with this view, but that his traffic "there was carried on with a view to enhance the price of the "commodity, to deprive the people of their ordinary subsistence, or else to compel them to purchase it at an exorbitant price, "who can deny that this is an offence of the greatest magni"tude." (w)

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(w) Rex v. Waddington, Hil. T. 41 Geo. 3. 1 East. R. 143.

dington.-In

grossing hops.

The same defendant had been also tried upon an indictment Second case which, in substance, charged him chiefly with ingrossing a large against Wadquantity of hops in Kent, by buying them from various persons by forehand bargains and otherwise, at a certain price, with intent to resell them at an unreasonable profit, or an exorbitant price. (x) were held not to be within the meaning of the statute 5 and 6 Edw. 6. c. 14. any more than apples, cherries, &c. (1 Hawk. P. C. c. 80. s. 20.) but the statute 9 Ann. c. 12. s. 24. must have altered the law with respect to hops, as it prohibited common brewers, under a penalty, from using any other bitter than hops in brewing beer: and the ground on which salt was held to be a victual within the meaning of that statute was not only because it is necessary of itself for the food and health of man, but also because it seasons and makes wholesome beef, pork, &c. 3 Inst. 195. The monopolizing of salt is clearly an offence at common law. Vide Lord Kenyon's judgment in Rex v. Waddington, 1

East, R. 157.

(x) The indictment consisted of ten counts: 1st. For ingrossing hops of divers persons by name, with intent to resell at an unreasonable profit, and thereby enhance the price; 2d, For ingrossing hops then growing, by forehand bargains, with like intent; 3d, For buying large quantities of hops of divers persons mentioned, with intent to prevent their being brought to market, and to resell them at an unreasonable profit, and thereby enhance the price; 4th, For buying all the growth of hops in several parishes by forehand bargains, with the like intent; 5th, For buying hops of divers persons named, with the same intent as in the first count; 6th, For

Indictment.

Punishment.

Of Monopolies.

It appeared from the report, that the principal part of the evi-
dence related to the forehand bargains made by the defendant
with different planters for their growing crop of hops; a practice,
however, which appeared to have prevailed for a considerable
period of time in Kent, and without which some of the witnesses
stated, that, in their judgment, the cultivation of this plant, the
expense of which was exceedingly heavy, could not be generally
carried on.
There was also evidence of the defendant's having
bought up very large quantities of the commodity to an unusual
amount, and by making unusual advances of money; and that he
had held out language of inducement to other persons dealing in
the same article, to withhold their stock from the market, with a
view to a rise in the price. (y)

On the part of the defendant, the long existence of the practice of making forehand bargains for hops was insisted upon as affording some argument for their legality; and that at any rate it could not be considered as ingrossing to have made forehand bargains for 258 acres out of 30,000 acres in cultivation of the same article in the county of Kent alone. But Grose, J., in passing sentence upon the defendant, adverted to what had been said in the former prosecution, and stated that the particular offence of ingrossing still remained an offence at common law, and was calculated to create an artificial scarcity where none existed in reality, and to aggravate that calamity where it did exist. (z)

An indictment for ingrossing a great quantity of fish, geese, and ducks, without specifying the quantity of each, has been held to be bad. (a) And an indictment for ingrossing magnam quantitatem straminis et fœni was quashed for not mentioning how many loads of each. (b)

It is said, that by an ancient statute the offender was to be grievously amerced for the first offence; for the second to be condemned to the pillory; for the third to be imprisoned; and, for the fourth, to be compelled to abjure the vill. And there seems to be no doubt but that, at this day, all offenders of this kind are liable to a fine and imprisonment, answerable to the heinousness of their offence, upon an indictment at common law. (c)

Monopolies are much the same offence in other branches of trade that ingrossing is in provisions: being a licence or privilege allowed by the king for the sole buying and selling, making, work

buying all the growth of hops on cer-
tain lands in certain parishes, by fore-
hand bargains, with intent to resell at
an unreasonable price, and thereby to
enhance the price; 7th, For endea-
vouring to enhance the price of hops
by persuading hop owners not to sell,
&c. 8th, For ingrossing, by buying
large quantities of persons unknown,
with intent to resell at an exorbitant
profit; 9th, Buying large quantities
with the like intent; 10th, For buying
hops then growing, with intent to re-
sell at an exorbitant price and lucre.
The defendant was tried before Lord
Kenyon, who thought the evidence

sufficient to go to the jury upon all the counts; and the jury found a general verdict against the defendant.

(y) This last-mentioned evidence applied to the 7th count; the only one the proof of which was afterwards contested, but without effect, at the bar.

(z) Rex v. Waddington, Hil. T. 41 Geo. 3. 1 East. Rep. 167.

(a) Rex v. Gilbert, 1 East. Rep. 583. (b) Anon. Cro. Car. 381. And see 2 Hawk. P. C. c. 25. s. 74. Rex v. Gibbs, 1 Str. 497. Rex v. Foster, 1 Lord Raym. 475.

(c) 1 Hawk. P. C. c. 83. s. 5.

ing, or using of any thing whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. (d) They are said to differ only in this,that monopoly is by patent from the king, ingrossing by the act of the subject, between party and party; and have been considered as both equally injurious to trades and the freedom of the subject, and therefore equally restrained by the common law. (e) By the common law, therefore, those who are guilty of this offence are subject to fine and imprisonment, the offence being malum in se, and contrary to the ancient and fundamental laws of the kingdom; and it is said that there are precedents of prosecutions of this kind in former days. (f) And all grants of this kind, relating to any known trade, are void by the common law. (g)

But, notwithstanding their illegality, monopolies had been carried to an enormous height during the reign of Queen Elizabeth; the evil was, however, in a great measure remedied by the statute 21 Jac. 1. c. 3., which declares them to be contrary to law, and void; (except as to patents not exceeding the grant of fourteen years, to the authors of new inventions; and except also patents concerning printing, saltpetre, gunpowder, great ordnance, and shot,) and monopolists are punished with the forfeiture of treble damages and double costs to those whom they attempt to disturb. (h)

It is worthy of observation, that, as our laws on the one hand. carefully protect the people from the arts of those who would unduly raise the price of the comforts and necessaries of life; so, on the other, they protect the fair trader from impositions which may have the effect of unduly lowering the price of the article in which he deals. Thus, the abatement by undue means of the price of our native commodities is punishable by fine and ransom : (i) and a case is mentioned where certain persons came to Coteswold, and said, in deceit of the people, that there were such wars beyond the seas that wool could not pass or be carried beyond sea, whereby the price of wools was abated; and presentment thereof being made, the defendants, having appeared, were, upon their confession, put to fine and ransom. (k)

(d) 4 Bla. Com. 158. 3 Inst. 181. (e) Skin. 169.

(f) 3 Inst. 181. 2 Inst. 47, 61. 4 Bac. Ab. 764. Monopoly (A) note (b). (g) 1 Hawk. P. C. c. 79. s. 1.

(h) Sect. 4. And see further upon

the subject of monopolies, 1 Hawk.
P. C. c. 79. 4 Bac. Abr. Monopoly.
(i) 3 Inst. 196., referring to 23 Ed. 3.
c. 6.
13 Rich. 2. c. 8. Inter leges.
Ethelstani, c. 12.
(k) 3 Inst. 196.

The undue athe price of our native commodities is pu

batement of

nishable.

CHAPTER THE TWENTIETH.

OF MAINTENANCE AND CHAMPERTY, AND OF BUYING AND SELLING
PRETENDED TITLES.

Maintenance. I. MAINTENANCE seems to signify an unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hindrance of common right. This may be where a person assists another in his pretensions to lands, by taking or holding the possession of them for him by force or subtilty, or where a person stirs up quarrels and suits in relation to matters wherein he is in no way concerned; (a) or it may be where a person officiously intermeddles in a suit depending in a court of justice, and in no way belonging to him, by assisting either party with money, or otherwise, in the prosecution or defence of such suit. (b) Where there is no contract to have part of the thing in suit, the party so intermeddling is said to be guilty of maintenance generally; but if the party stipulate to have part of the thing in suit, his offence is called champerty.(c)

Instances of maintenance.

As to maintenance, it is laid down, that whoever assists another with money to carry on his cause, as by retaining one to be of counsel for him, or otherwise bearing him out in the whole or part of the expense of the suit, may properly be said to be guilty of an act of maintenance. (d) It has been said that no one can be guilty of maintenance in respect of any money given by him to another for the purposes of an intended suit, before any suit is actually commenced; but it should seem that this, if not strictly

(a) Co. Lit. 368 b. 2 Inst. 208, 212, 213. 1 Hawk. P. C. c. 83. s. 1, 2. 4 Bac. Ab. 488. Maintenance. This kind of maintenance is called in the books ruralis, in distinction to another sort carried on in courts of justice, and therefore called curialis. It is punishable at the king's suit by fine and imprisonment, whether the matter in dispute any way depended in plea or not; but is said not to be actionable.

(b) 1 Hawk. P. C. c. 83. s. 3. 4 Eac. Abr. 488. Maintenance. 4 Bla. Com. 134. This kind of maintenance is called curialis. See ante, note (a).

(c) Co. Lit. 368. 1 Hawk. P. C. c. 83. s. 3. The abuse of legal proceed

ings by oppressive combinations to carry them into effect is observed by Mr. Hume to have speedily appeared upon the establishment of the laws in the time of Edward I. He says," in"stead of their former associations for "robbery and violence, men entered "into formal combinations to support "each other in lawsuits; and it was "found requisite to check this iniquity "by act of parliament." 2 Hume 320, referring to the statute of Conspirators.-Edw. I.

(d) 1 Hawk. P. C. c. 83. s. 4., and the numerous authorities cited in the margin.

maintenance, must be equally criminal at common law. (e) And a person may be as much guilty of maintenance for supporting another after judgment, as for doing it while the plea is pending, because the party grieved may be thereby discouraged from bringing a writ of error or attaint. (ƒ)

It has also been said, that he who by his friendship or interest saves a person that expense in his cause which he might otherwise be put to, or gives, or but endeavours to give, any other kind of assistance to a party in the management of his suit, is guilty of maintenance. (g) And it has been said also, that he who gives any public countenance to another in relation to such suit will come under the like notion; as if a person of great power and interest says publicly that he will spend a sum of money on one side, or that he will give a sum of money to labour the jury, whether in truth he spend any thing or not; or where such a person comes to the bar with one of the parties, and stands by him while his cause is tried, whether he says any thing or not; for such practices not only tend to discourage the other party from going on with his cause, but also to intimidate juries from doing their duty. (h) But it seems that a bare promise to maintain another is not in itself maintenance, unless it be either in respect of the power of the person who makes it, or of the public manner in which it is made. (1) And it seems clear, that a man is in no danger of being guilty of an act of maintenance, by giving another friendly advice as to his proper remedy at law, or as to the counsellor or attorney likely to do his business most effectually. (k)

But there are many acts, in the nature of maintenance, which When justifibecome justifiable from the circumstances under which they are able. done. They may be justifiable, 1. in respect of an interest in the thing in variance; 2. in respect of kindred or affinity; 3. in respect of other relations, as that of lord and tenant, master and servant; 4. in respect of charity; 5. in respect of the profession of the law. It seems clear that not only those who have an actual interest in the thing in variance, as those who have a reversion expectant

(e) 4 Bac. Ab. 490. Maintenance, (A). 1 Hawk. P. C. c. 93. s. 12. where it is said, that if it plainly appear that the money was given merely with a design to assist in the prosecution or defence of an intended suit, which afterwards is actually brought, surely it cannot but be as great a misdemeanor in the nature of the thing and equally criminal at common law as if the mo ney were given after the commencement of the suit; though perhaps it may not in strictness come under the notion of maintenance.

(f) 1 Hawk. P. C. c. 83. s. 13. 4 Bac. Ab. 490. Maintenance (A).

(g) Bro. tit. Maintenance, 7, 14, 17, &c. 1 Hawk. P. C. c. 83. s. 5, 6. But qu. how far this would be acted upon at the present day; and see the judgment of Buller, J. in Master v. Miller, 4 T. R. 340. where he says: "It is

VOL. I.

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In respect of an interest in

the thing in variance.

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