Odger's English Common Law

MAINTENANCE AND CHAMPERTY. 207
merely declaratory of the common law, and prescribe
additional penalties.
Although these enactments still remain on the statute book,
a prosecution under them very seldom occurs ; and were it
not for occasional declarations by the judges that the law of
maintenance still lives and is effective, 1 the criminal character
of the offences might be deemed a thing of the past. But
the question of maintenance not infrequently arises in civil
cases, generally as a defence to an action upon a contract
under a plea of illegality. 2
The law however permits a man
to assist the litigation of another when he himself has, or
bond fide believes that he has, a common interest with him
in the result of the proceedings. Such interest may be present
or future, vested or contingent, but it must be a pecuniary
interest in the actual subject-matter of the action, and not
merely a sentimental one.
Thus neighbours may combine to protect a right of way ;
and generally
" where there are numerous persons having the same interest iu one cause
or matter, one or more of such persons may sue or be sued, or may be
authorised by the Court or a judge to defend in such cause or matter, on
behalf or for the benefit of all persons so interested." 3
Again, a father can assist his son in bringing an action, a landlord his
tenant, a master his servant or a servant his master. So any man may
assist his near kinsman—an expression which has received a liberal
interpretation.
Further, it is not maintenance for a rich man to assist a poor man with
money or advice in order to enable him to briDg or defend an action, pro-
vided such assistance is given out of pure charity, 4 and such assistance is
none the less charitable, though induced by common religious belief. 5 But
if a rich man advances money to a poor man at an exorbitant rate of
interest, or on the terms that the borrower pays him a portion of the
damages which he recovers, he can be convicted of maintenance ; for his
motive in advancing the money is not pure charitj', but self-seeking.
Lastly, it has been held that, in certain circumstances, it is not main-
tenance for a tradesman to maintain his customers ; " for instance, he
1 See the remarks of Lord Coleridge, L. C. J., in Bradlaugh v. Newdegate (1883),
11 Q. B. D. at p. 14. As to common barratry, see post, p. 216.
2 See post. p. 73 1.
3 Order XVI. r. 9 ; and see Bedford v. Ellis, [1901] A. C. 1. It is for this
reason no doubt that it is not maintenance to assist another in a criminal prosecution,
as all are interested in bringing an alleged criminal to trial.
* Harris v. Brisco (1886), 17 Q. B. D. 50-1.
* Holden v. Thompson, [1907] 2 K. B. 489.
6 British Cash and Parcel Conveyors, Ltd. v. Lamson Store Service Co., Ltd.,
[1908] 1 K. B. 1006.