Champerty and Its Meaning - Maintenance - Agreements that are by their Nature Void or Illegal - Perverting the Course of Justice - "Rigging the Market" explained - Illegal Payments - Sunday Contracts are Void - Regulations of Professions and Trade - Time in Contracts - Tender - Glossary
Champerty is a kind of maintenance, and is an agreement to advance funds or supply evidence with or without professional assistance (or, it seems, professional assistance only) for the recovery of property in consideration of payment depending on success in the action, which is to be paid out of the property recovered, and is void. A solicitor cannot purchase the subject matter of a pending suit from his client in the action, but he may take a security upon it for advances already made and costs already incurred.
Maintenance arises where there is " something against good policy and justice, something tending to promote unnecessary litigation, something that in a legal sense is immoral, and to the constitution of which a bad motive in the same sense is necessary." A transaction cannot be bad for maintenance whose object is to enable a principal or other person really interested to assert his right in his own name. Nor is it maintenance for several persons to agree to prosecute or defend a suit in the result of which they have, or reasonably believe that they have, a common interest.
Where a master and his servant are both liable for an action for libel for matter published by the servant in the master's newspaper, and the action is brought against the servant only, the master is entitled to undertake his defence.
So that where a lady who was the honorary editor of a journal was sued by a doctor for a libel which had appeared in the journal, which she had not herself written or even supervised, it was held that it was not illegal of the corporation whose organ the journal was, to defend the action for her. Charity is also a sufficient excuse for maintaining a stranger's action, even without any inquiry into the merits of the case.
The assignment of the pay or salary of a public officer or for the sale or resignation of his office. A contract between a master and his servant by which the latter agrees to waive the breach by the master of an obligation imposed upon him by statute for the protection of his servants. An agreement for the future separation of husband and wife. A contract in general restraint of marriage, and a contract under which a parent or guardian acquires a personal benefit given him in order to induce him to give his consent or to withdraw his opposition to the marriage of his child or ward is void. Marriage brokerage contracts for the payment of money in consideration of bringing about a marriage are illegal. And gaming and wagering contracts, though not illegal, are void by statute. An assignment of an old age pension is also void.
Any contract having a tendency, no matter how slight, to pervert the course of justice is void on the grounds of illegality. An agreement to pay money in consideration of the other party's forbearing to take criminal proceedings is illegal, and so is an agreement for the withdrawal of an election petition in which charges of bribery are made, or a promise for valuable consideration not to oppose a bankrupt's application for discharge, or a promise to marry a woman if she obtains a divorce from her present husband by improperly concealing material facts from the Court. An indemnity given to bail, whether by the prisoner bailed or another, is illegal, because it deprives the public of the intended security for the conduct of the defendant. "Rigging" the market, or an agreement between two or more persons to induce buyers of shares to believe that there is a market for them and that the shares are of greater value than they are in reality, is illegal.
Money paid for an illegal purpose may be recovered any time before the illegal purpose has been carried out, but not afterwards, because then the parties are in equal fault, and the maxim, "the condition of the possessor is the better," applies.
Where the plaintiff had advanced money to enable the defendant to settle a criminal prosecution, and then brought an action to recover the covenant on a bond which the latter had given him as security for repayment, it was held that the consideration being illegal vitiated the deed, although there was nothing on the face of the deed to indicate that it had been executed for an unlawful purpose. When it is doubtful whether a contract is legal or illegal, the presumption of law is in favour of its legality.
A promise made by a married man during the lifetime of his wife to marry another woman, who knows that he is a married man, is void, and no action for breach of promise can be taken, even after the death of the wife. In the converse case of a promise to marry a married woman after the death of her husband or after a divorce, the same principle applies. But if the person to whom the promise was made by a married man or woman was unaware of their married state, an action for breach of promise would lie. Made on Sunday
The Sunday Observance Act of Charles II. provides that no tradesman, artificer, workman, labourer, or other person whatsoever shall do any labour or work of his ordinary calling on Sunday, works of necessity or charity excepted, and the effect of this is to render void any contract entered into on Sunday by any person to whom the Act applies, if the contract is made in exercise of his ordinary calling. But the words "other person whatsoever" only apply to persons of the classes specified, and do not include domestic servants or a hairdresser, although it applies to barbers, so far as concerns the business of shaving customers, or a farmer. Baking puddings or pies is not an exercise of the ordinary calling of a baker.
Medical and surgical practitioners, apothecaries, dentists, and veterinary surgeons cannot recover any charges for professional services unless they are registered. Solicitors must be enrolled and hold a certificate authorising them to practise. Auctioneers, hawkers, pedlars, pawnbrokers, money-lenders, and midwives must also be registered or hold a licence or certificate to carry on their business. Poisons can only be sold by registered chemists; intoxicating liquors, tobacco and snuff, and game only by persons who are licensed to sell them. Bread and coal must be sold by weight, and payment of money made in currency and not otherwise.
If no time for the performance or execution of it is fixed by the contract, there is an implied undertaking by each party to perform his part within a reasonable time, which must depend upon the circumstances of the case.
Where there is a stipulation that goods shall be delivered on or before a certain day, it is sufficient if they are delivered at a reasonable time on the last day.
In a contract for the purchase of a house, if it is provided that possession shall be given by a certain date, time will be considered of the essence of the contract, if the vendor was aware that the buyer wanted the house for his own residence.
An option for the renewal of a lease or for the purchase of property must be exercised within the time limited.
The amount tendered must be exactly the amount due. If the debtor tenders a larger amount and does not require change it is a good tender, but if he requires change the tender is bad. Gold coins are a legal tender for any amount, silver for a sum not exceeding forty shillings, and bronze up to one shilling. A Bank of England note is a legal tender for all sums above £5. The tender need not be made to the creditor himself; it may be made to an agent authorised to receive payment of the debt. Although a valid tender does not extinguish the debt, it stops the further accrual of interest, and puts the plaintiff in the wrong so far as his action is concerned.
Glossary of Legal Terms.
Champerty is where "he who maintains another is to have by agreement part of the land or debt in suit."
Maintenance is denned as "when a man maintains a suit or quarrel to the disturbance or hindrance of right."
Tender is attempted performance. It is applied to a performance of a promise to do something, or of a promise to pay something, according to whether it is a tender of goods or a tender of money.