A Treatise on Criminal Law as Applicable to the Dominion of Canada

P., agreed with the defendant that, if such judgment, or any portion of it, should be realized from property to be pointed out by him, the defendant should have one-third of the amount so realized. The agreement further provided that "all costs that may be incurred in endeavouring to make the money to be payable by him (the defendent), if unsuccessful, and the amount of such costs to be the first charge on any proceeds, the net balance to be divided." Goods pointed out by the defendant having been seized, under the plaintiff's execution, were claimed, and, on an interpleader issue, were found to be the claimant's. The plaintiffs thereupon sued defendant upon the agreement for their costs of defence in the interpleader, etc., which they had been compelled to pay:-Held that such agreement, if not champerty, was illegal, as being opposed to public policy, and the due administration of justice. (a)

Whether or no there must be a suit pending to constitute maintenance does not seem perfectly clear. The argument employed in Kerr v. Brunton, against the agree ment being maintenance, was, that no suit was pending about any property, nor was it binding on the plaintiff to bring any suit. The Court did not actually decide that the argreement amounted to maintenance, in its strict sense, but held that, at all events, it was a great misdemeanor in the nature of the thing, and equally criminal at common law. (b) It would seem, from Sprye v. Porter, (c( that the argreement in Kerr v. Brunton was maintenance. In the former case, A., in consideration of one-fifth of the property to be recovered, agreed that, in case it should become necessary to institute proceedings at law or in equity, he would furnish such information

(a) Kerr v. Brunton, 24 U. C. Q. B. 390.

(b) See Wood v. Downes, 18 ves. 125. (c) 7 E. & B. 58.

and evidence as would ensure the recovery of the property; and Lord Campbell characterizes this as "maintenance in its worst aspect," although no proceeding was actually commenced or pending.

The plaintiffs having filed a bill for specific performance of a contract by one R. to sell a certain mine to them, it was agreed between the plaintiffs and T., one of the now defendants, while such suit was pending, that certain persons should purchase said mine from the plaintiffs; that they should deposit the money required for security for costs which the plaintiffs had been ordered to give in said suit, and pay all costs incurred, or to be incurred therein, or any other suit brought or defended by them respecting said mine, and pay all moneys due for the purchase thereof; and, lastly, to allot to each of the plaintiffs a twentieth share therein, if they should succeed in getting a title through the suit, and that they would settle all claims of Messrs. E. & G. against the plaintiffs. The plaintiffs having sued defendants on the last-mentioned covenant:-Held upon demurrer to a plea setting out the transaction that the agreement was void for champerty and maintenance. (a) But the agreement of T. to purchase the mine, though then in litigation, was not necessarily illegal. (b) The agreement with respect to the costs, that T. should pay them, and carry on the proceedings, was probably illegal. (c) If T. had an interest in the property at the time of the purchase from the plaintiffs, the purchase or prosecution of the suit would not have been illegal (d); or if he then had a

(a) Carr v. Tannahill, 30 U. C. Q. B. 217.

(b) S. C. 31 U. C. Q. B. 209, per Wilson, J.; Harrington v. Long, 2 M. & K.

593.

(d) Ib., 420-430.

claim which he believed gave him an interest in the property. (a)

A sharing in the profits derived from the success of the suit is essential to constitute champerty. (b) The plaintiff agreed with a solicitor to give him a portion of the profits arising from the successful prosecution of a suit to establish his right to certain coal mines, upon being indemnified against the costs of the proceedings: -Held that the contract amounted to champerty and maintenance. (c)

After verdict and before judgment, a plaintiff in ejectment assigned the subject matter of the suit to his attor ney, as a security for money advanced by the attorney in carrying on the suit, and for other purposes, and for the amount due to him for his professional services:Held, affirming the judgment of the Queen's Bench, that the assignment was not void as against public policy, or by reason of any of the statutes against champerty and maintenance (d); for the contract was confined to the payment of a debt already due for costs subject to taxation; and, therefore, the attorney got nothing but a security for a just debt.

A conveyance, whether voluntary, or for valuable consideration of property which the grantor has previously conveyed by deed, voidable in equity, is not void on the ground of champerty. (e) An agreement by a shareholder in a company which is being compulsorily wound up, that, in consideration of a pecuniary equivalent, he will support the claim of a creditor, comes within the

(a) Findon v. Parker, 11 M & W. 675; Carr v. Tannahill, supra, 210, per A. Wilson, J.

(b) Hartley v. Russell, 2 S. & St. 244-252; Carr v. Tannahill, supra, 210, per Wilson, J.

(d) Anderson v. Radcliffe. 7 Ú. Ĉ. L. J. 23 (ex Chr.) E. B. & E. 806-819. (e) Dickenson v. Burrell, L. R. 1 Eq. 337.

rule of law against maintenance, because it is to uphold a claim to the disturbance of common right. (a)

The 32 Hy. 8, c. 9, as to selling pretended titles, is in force here. (b) The intention of this statute and the ground of the principle of the common law, which is said to be fully in accordance with it, was that a person claiming a right which he knew to be disputed, should not sell a mere law suit, but should first reduce the right to possession and then sell. (c) A person cannot be convicted on this Statute merely upon his own admission that he has taken a deed from a party out of possession. Some evidence aliunde must be adduced of the existence of such deed. (d)

Buying an equity of redemption in a mortgaged property, of which the person selling has been out of possession for many years, is not buying a disputed title within the Statute. (e)

In Ontario, by the Con. Stat. U. C. c. 90, s. 5, the 32 Hy. 8, c. 9, is to some extent repealed, and a person selling a right of entry is protected from the penalties imposed by the 32 Hy. 8, c. 9; for he can no longer be looked upon as selling a pretended right, when the law allows such right to be the subject of legal conveyance. (f) But it would seem that the Statute is only repealed to the extent of permitting a man to sell and convey a right of entry which is actually subsisting in himself, and that the sale of a pretended right which does not in fact exist is still within the Statute. (g)

The (Ont.) 35 Vic., c. 12, renders choses in action as

(a) Elliott v. Richardson, L. R. 5 C. P. 748, per Willes, J.

(b) Ante p. 20.

(d) Aubrey q. t. v. Smith, 7 U. C. Q. B. 213.

(e) M'Kenzie v. Miller, 6 U. C. Q. B. O. S. 459.

(f) Baby q. t. v. Watson, 13 U. Č. Q. B. 531. (g) 16.

signable at law. This enactment conflicts in principle with the 32 Hy. 8, c. 9.

Bigamy. It would seem from the express language of the 32 & 33 Vic., c. 20, s. 58, that it only applies to the case of a second marriage, and that the offence of polygamy, in its ordinary acceptation, is not comprehended within its provisions. Assuming that under this Statute a person guilty of polygamy cannot relieve himself from the penalties attaching to bigamy, it may be a question, in the event of a plurality of marriages, to which of them proof should be directed; whether any two of them, or the first and second, or all.

The 4 Ed. 6, Stat. 3, c. 5, and 1 Jac. I, c 11, may perhaps apply here, except in so far as they are superseded by the Colonial Act.

On trials for bigamy, the guilt or innocence of the defendant depends upon the legality of the first marriage; and before the jury can convict him they must clearly see that a prior legal marriage has in fact taken place (a) It seems that if the marriage is voidable merely, it will suffice to constitute bigamy. (b) It has been held that though the second marriage would have been void, as for consanguinity or the like, the defendant is guilty of bigamy. (c) But the majority of the Judges of the Irish Court of Criminal Appeal have held that to constitute the offence of bigamy, the second marriage must be one which, but for the existence of the previous marriage, would have been a valid marriage. (d) This doctrine has been very materially modified in a late case. (e) It is there laid down that it is the appearing to

(a) Breakey v. Breakey, 2 U. C. Q. B. 353, per Robinson, C. J.

(b) R. v. Jacobs, 2 Mood. C. C. 140; Arch. Cr. Pldg. 886.

(d) Reg. v. Fanning, 10 Cox, 411; see also Reg. v. Clarke, ib. 474; Arch. Cr. Pldg. 887.

(e) Reg. v. Allen, infra.

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