1 Me. 292 | Me. | 1821
The payment of the bond in this case is resisted on the ground that the condition is against law, and void ; as it was intended to give the plaintiff a reimbursement of expenses which were expected to be incurred in defending one or more suits, under such circumstances as would render all concerned in giving him aid, and furnishing him with pecuniary means, guilty of the crime of maintenance. If this be true, the action cannot be supported.
. It may be remarked in the first place that the condition contains a declaration of the obligors that they were determined not to pay certain taxes which had been assessed upon them, unless compelled by law. Their object seems to have been, not to oppose the law, but to have the merits of a question in which all professed to be interested legally decided ; and the presumption arising from their mode of proeeding is that they intended that one action should be contested and decided in the proper tribunal, which would probably settle the question as it respected all placed in the same situation. Hence all engaged to bear their respective proportions of the expense which the plaintiff might incur in effecting the desired object. This appears, from the condition of the bond, to have been the intention of all the parties ; and this, the defendant’s counsel contends, amounts to the offence of maintenance; and that therefore, according to the case of Swett & al. v. Poor & al. 11 Mass. 549. the contract founded on these proceedings is vitiated.
Maintenance, in general, signifies an unlawful taking in hand or upholding of quarrels and sides, to the hindrance of common right. Co. Lit. 363. b. Maintenance in the country, is where one stirs up quarrels or suits in relation to matters wherein he is no way concerned. Those who have a reversion expectant on an estate tail;—those who have a bare contingency oí an in
From these cases and. authorities it is clear that the obligors in the bond before us had an interest in the question referred to in the condition, equal, at least, to an equitable, or a merely contingent one, and that their object was not in any manner to cause a hindrance of common right. But it was contended by the defendant’s counsel that the bond in question does operate as such an hindrance, and tends to prevent the due course of justice ; because it deprives others of the testimony of the obli-gors relating to the subject matter of the bond. It is true it may have that effect with respect to those who are parties to that contract, because a man may waive his own rights at his pleasure ; and if the obligee cannot call either of the obligors as a witness, nor the obligors have the testimony of each other touch-ingithe question in which they are all interested, it is because by their own act they have consented to waive their legal rights. But this transaction cannot affect third persons ; and the objection is not well founded as it regards those who are not parties to the bond; it being a principle of law7 well settled and acknowledged, that a witness, in whose testimony others have an interest, cannot, by his own act, deprive them of that testimony; as by laying a wager, or declaring himself interested in the event of the suit, or by any other act, after the interest in his testimony has vested ; unless such act be done by the express or implied consent of those who have the interest.
But it was urged further that it is against sound policy and will tend to promote litigation, to support this bond. It is clearly not against morality; and we do not perceive how sound policy can forbid a number of persons interested in the same question, and whose claims depend on the same general principle of lawn from agreeing to defray jointly the expense which must be incurred in the decision of siich question in a single cause, when
The contract into which the defendants have entered seems to be a fair one, with no unlawful intention, and infringing no man’s rights; and we cannot but think the defence as far from being entitled to indulgence, as it is from being supported by legal principles.
Declaration adjudged good*
