Accordingly the Court held that an indictment for offences including riot and obstruction of a public officer in the execution of his duty cannot be legally the subject of a compromise. The judgment of the Exchequer Chamber (1) affirmed this, but showed some dissatisfaction even with the limited right of compromise admitted in the Court below. It was observed that there was really very little authority for it; and although it was not actually so laid down, it looks as if the Court would have been ready to decide if necessary that the compromise of any criminal offence is illegal. In a late case, however, the Court of Appeal entertained no doubt that where there is a choice of a civil or criminal remedy a compromise of criminal as well as civil proceedings is lawful (u).

It is not compounding felony for a person whose name has been forged to a bill to adopt the forged signature and advance money to the forger to enable him to take up the bill. It is doubtful whether a security given by the forger for such advance is valid: but he cannot himself actively dispute it (on the principle potior est condicio defendentis, of which afterwards), nor can his trustee in bankruptcy, who for this purpose is in no better position than himself, as there is in any case no offence against the bankrupt laws (x).

An agreement by an accused person with his bail to indemnify him against liability on his recognizances is illegal, as depriving the public of the security of the bail (y).

The compounding of offences under penal statutes is 18 Eliz. expressly forbidden by 18 Eliz. c. 5, s. 5.

B. N. S. 414, held that forbearance
to prosecute a charge of obtaining
money by false pretences is an illegal
consideration. What if there is no
real ground for a prosecution, the
supposed offence being an act not
criminally punishable? See per Fry,
J. 8 Ch. D. at p. 477. It is sub-
mitted that the agreement would be
void for want of consideration.
(t) 9 Q. B. at p. 392.

P.

(u) Fisher & Co. v. Apollinaris Co. 10 Ch. 297.

(x) Otherwise where, after an act of bankruptcy, the bankrupt's money has been paid for stifling a prosecution: there the trustee can recover it: Ex parte Wolverhampton Banking Co., 14 Q. B. D. 32; Ex parte Caldecott, 4 Ch. D. 150.

(y) Wilson v. Strugnell, 7 Q. B. D. 548.

U

c. 5.

Compromise of election petition.

In civil proceed

promise

impro

Cooth v.

An election petition, though not a criminal proceeding, is a proceeding of a public character and interest which may have penal consequences; and an agreement for pecuniary consideration not to proceed with an election petition is void at common law, as its effect would be to deprive the public of the benefit which would result from the investigation (≈).

In like manner an agreement for the collusive conduct of a divorce suit is void (a), and an agreement not to expose immoral conduct has been held void as against public policy (b).

Agreements relating to proceedings in civil courts, and ings. Com- involving anything inconsistent with the full and impartial course of justice therein, though not open to the charge perly of anything like actual corruption, are likewise held void. procured: Where an agreement for compromise of a suit (a thing Jackson. regarded as in itself rightful and even laudable) was in fact founded on information privily given to one of the parties by an officer of the Court in violation of his duty (such information not being specific, but a general intimation that it would be for the party's interest to compromise), Lord Eldon held that it could not be enforced (c).

Secret agreement

as

duct of

windingup:

Elliott v. Richardson.

A shareholder in a company which was in course of to con- compulsory winding-up agreed with other shareholders, who were also creditors, in consideration of being indemnified by them against all future calls on his shares, that he would help them to get an expected call postponed, and also support their claim: it was held that "such an agreement amounts to an interference with the course of public justice": for the clear intention of the Winding-up Acts is that the proceedings should be taken with reasonable speed so that the company's affairs may be settled and the shareholders relieved; and therefore any secret agree

(2) Coppock v. Bower, 4 M. & W.

361.

(a) Hope v. Hope, 8 D. M. G.

(b) Brown v. Brine, 1 Ex. D. 5. (c) Cooth v. Jackson, 6 Ves. 11, 31, 32.

ment to delay proceedings to the prejudice of the other shareholders and creditors is void (d). This comes near to the cases of secret agreements with particular creditors in bankruptcy or composition: and those cases do in fact rest partly on this ground. But the direct fraud on the other creditors is the chief element in them, and we have therefore spoken of them under an earlier head (p. 238).

ments for

law.

Agreements to refer disputes to arbitration are, or rather Agreewere, to a certain extent regarded as encroachments on reference the proper authority of courts of justice by the substi- to arbitration, how tution of a "domestic forum" of the parties' own making. far valid at At common law such an agreement, though so far valid common that an action can be maintained for a breach of it (e), does not "oust the ordinary jurisdiction of the Court"that is, cannot be set up as a bar to an action brought in the ordinary way to determine the very dispute which it was agreed to refer. Nor could such an agreement be specifically enforced (f), or used as a bar to a suit in equity (g). It is said however "that a special covenant not to sue may make a difference" (g). And the law has Practically ennot been directly altered (g): but the Common Law Pro- forceable cedure Act, 1854 (17 & 18 Vict. c. 125, s. 11), gave the under C. Courts a discretion to stay proceedings in actions or suits 1854. on the subject-matter of an agreement to refer, which amounts in practice to enabling them to enforce the agreement and this discretion has as a rule been exercised by Courts both of law (h) and of equity (i) in the absence of special circumstances, such as a case where a charge of fraud is made, and the party charged with it desires the inquiry to be public (k), or where the defendant appeals

(d) Elliott v. Richardson, L. R. 5 C. P. 744, 748-9, per Willes, J. (e) Livingston v. Ralli, 5 E. & B. 132, 24 L. J. Q. B. 269.

(f) Street v. Rigby, 6 Ves. 815, 818.

(g) Cooke v. Cooke, 4 Eq. 77, 86-7.

(h) Randegger v. Holmes, L. R. 1 C. P. 679; Seligmann v. Le Boutillier,

ib. 681.

(i) Willesford v. Watson, 14 Eq. 572, 8 Ch. 473; Plews v. Baker, 16 Eq. 564.

(k) Russell v. Russell, 14 Ch. D. at p. 476 (Jessel, M.R.).

L. P. Act,

clauses.

to an arbitration clause not in good faith, but merely for the sake of vexation or delay (1). A question whether on the true construction of an arbitration clause the subjectmatter of a particular dispute falls within it is itself to be dealt with by the arbitrator, if it appears from the nature of the case and the terms of the provisions for arbitration that such was the intention of the parties. Otherwise it must be decided by the Court (m).

And when the question is whether an agreement containing an arbitration clause is or is not determined, that question is not one for arbitration, since the arbitration clause itself must stand or fall with the whole agreement (n).

Special Certain statutory provisions for the reference to arbitrastatutory arbitration tion of internal disputes in friendly and building societies. have been decided (after some conflict) to be compulsory and to exclude the ordinary jurisdiction of the Courts (0). The Railway Companies Arbitration Act, 1859, is also compulsory (p).

Agreement of parties

Moreover parties may if they choose make arbitration a condition precedent to any right arising at all, and in may make that case the foregoing rules are inapplicable: as where right of action the contract is to pay such an amount as shall be deteron arbitra- mined by arbitration or found due by the certificate of a particular person (q). Whether this is in fact the contract,

conditional

tion.

(7) 14 Eq. 578; Witt v. Corcoran, 8 Ch. 476, n., 16 Eq. 571. The enactment applies only where there is at the time of action brought an existing agreement for reference which can be carried into effect. Randell, Saunders & Co. v. Thompson (C. A.), 1 Q. B. D. 748.

(m) Piercy v. Young (C. A.), 14 Ch. D. 200, 208, per Jessel, M.R., qualifying the apparent effect of Willesford v. Watson, 8 Ch. 473.

(n) Per James, L. J. in Llanelly Ry. & Dock Co. v. L. & N. W. Ry. Co., 8 Ch. at p. 948.

(o) Thompson v. Planet Benefit

Building Society, 15 Eq. 333; Wright V. Monarch Investment Building Society, 5 Ch. D. 726; Hack v. London Provident Building Society, 23 Ch. D. 103; Municipal Building Society v. Kent, 9 App. Ca. 260. Not so where the real question is whether a party claiming against the society is a member of the society at all, Prentice v. London, L. R. 10 C. P. 679.

(p) Watford & Rickmansworth Ry. Co. v. L. & N. W. Ry. Co., 8 Eq.

231.

(9) Scott v. Avery, 5 H. L. C. 811; which does not overrule the former

or it is an absolute contract to pay in the first instance, with a collateral provision for reference in case of difference as to the amount, is a question of construction on which. there has been some difference of opinion in recent cases (r).

nance and

We now come to a class of transactions which are Maintespecially discouraged, as tending to pervert the due course of justice in civil suits.

These are the dealings which are held void as amounting to or being in the nature of champerty or maintenance. The principle of the law on this head has been defined to be "that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce" (s). Maintenance is properly a general term of which champerty is a species. Their most usual meanings (together with certain additions and distinctions now obsolete) are thus given by Coke :

"First, to maintain to have part of the land or anything out of the land or part of the debt, or any other thing in plea or suit; and this is called cambipartia [champart, campi partitio], champertie."

The second is "when one maintaineth the one side without having any part of the thing in plea or suit" (†). Champerty may accordingly be described as "maintenance aggravated by an agreement to have a part of the thing in dispute " (u).

Agreements falling distinctly within these descriptions are punishable under certain statutes (r). It has always

general law on the subject, see the judgments of Brett, J., and Kelly, C. B., in Ex. Ch. in Edwards v. Aberayron, &c. Society, 1 Q. B. D. 563; Scott v. Corporation of Liverpool, 3 De G. & J. 334. Cp. Collins v. Locke (J. C.) 4 App. Ca. 674, 689.

(r) Elliott v. Royal Exchange Assurance Co., L. R. 2 Ex. 237; Dawson v. Fitzgerald (C. A.), 1 Ex. D. 257, revg. s. c. L. R. 9 Ex. 7.

(s) By Lord Abinger in Prosser v. Edmonds, 1 Y. & C. Ex. 481, 497.

(t) Co. Lit. 368 b. Every champerty is maintenance, 2 Ro. Ab. 119 R.

(u) Bovill, arg. in Sprye v. Porter, 7 E. & B. 58, 26 L. J. Q. B. 64.

(x) 3 Ed. 1 (Stat. Westm. 1), c. 25; 13 Ed. 1 (Stat. Westm. 2), c. 49 28 Ed. 1, st. 1, c. 11; Stat. de Conspiratoribus, temp. incert.; 20 Ed. 3, c. 4; 1 Ric. 2, c. 4; 7 Ric. 2, c. 15; and 32 H. 8, c. 9, of which more presently.

cham

perty.