
    Wickham, qui tam, &c. against Conklin.
    Au action lor maintenance will not lie against a person for car-lying on a another, or assecaUo'n,‘tf^he equitableCShite- or subject of eon'1 troversy.
    ^ ^ seeks to avoid a deed on the ground of an at the^iroc^f1its adveCrse0npossesciearlymade ouT and^°o t *be l eft to inference or conJ
    Though a per-suit In tiienmnc for M°Low¡i beneStj yet be is not liable to an action for maintenunce under the nth section of the act to punibh champerty nance. "(Sees" a c. 8/.)
    THIS was a aui tain action, for 1,000 dollars, of debt, i ’ ’ ■> i to recover four penalties, of 250 dollars each, on the act to 1 punish champerty and maintenance. (Sess. 24. c. 8 7.)
    
    The declaration contained four counts. The first count stated, that by the act, (sect. 1.) “ no officer or other person should (shall) take upon him any business that was or might (may) be in suit in any court, for to have part of the thing in plea or demand, and no person, upon any such agreement, should (shall) give up his right to , _ . - another, and every such conveyance and agreement should be void. And every such person who should (sha11) maintain any plea or suit in court, for -*an^s> tenements, or other things, for to have part or pro-thereof, should be punished, by fine or imprisonment j but (that) this act should (shall) not prohibit any person, to have counsel, of persons duly licensed for that pur» pose, or to take counsel of his parents or (and) next friends.” And “ that (sect. 9.) no person should (shall) thereafter unlawfully maintain, or cause or procure any unlawful maintenance, in any matter or cause whatsoever, in J J suit and variance, concerning any lands, tenements or hereditaments, or any goods, chattels, debts, damages, or „ ... , r oitences in any court m this state, or beiore any person who should (shall) have authority to hear or determine respecting the same; and that no person should (shall) unlawfully retain for maintenance of any suit or plea, any person, or embrace any freeholder or jurors, by rewards, promises, or other sinister labour or means, to . • , maintain any matter or cause, or to the hindrance or disturbance of justice, or to the procurement or occasion of any false verdict, in any court within this state, upon pain to forfeit, for every such offence, 250 dollars; the one moiety thereof to the use of the people, and the other moiety to him who will sue for the same, by action of debt,” &c. The plaintiff then stated that the defendant, on the 1st of September, 1808, did unlawfully mdintain a certain matter or cause in suit and variance, concerning certain lands situate in Tully, in Onondaga county, wherein J. Jackson was plaintiff, and Jether ■Bailey, defendant, and then was and still is depending in the supreme court, contrary to' the act, &c. whereby an action hath accrued, &c.
    The second count was like the first.
    The third count was like the second, except that the suit was stated to be by James Jackson against Elias Davis.
    
    The fourth count was like the third.
    The cause was tried at the Orange circuit, in September, 1810, before Mr. Justice Van Ness. At the trial, the plaintiff proved, that the writ in this cause was issued the 6th of June, 1809, and offered to prove, that on the 12th of June, 1806, the defendant and one Benjamin Herrick, had taken a deed of a lot in the military tract, knowing that certain persons were then in possession holding adversely. The proof was objected to, but admitted. The plaintiffs then proved, that in June, 1806, the defendant and B. Herrick asked Charles J. Tucker to sell a military lot; that Tucker told them he .had sold the right, when a minor, and that he gave the deed in 1792, and that he was born the 10th of August, 1772. That the defendant and B. H. offered him 50 dollars; that they paid him 5 dollars, which he was to retain, in every event, and gave him. a bond for the residue; that the deed was drawn in the name of William -D. Williams, and that they and Williams were jointly interested. The papers mentioned by the witness, though objected to, were read in evidence. The bond was dated June 12, 1806, for 45 dollars, and conditioned to be good, if the defendant and B. Herrick obtained the lot granted to John Tucker, a soldier, (brother to Charles A. Tucker.) The other -writing, which they gave to C. A. Tucker was of the same date, and certified that they were to be at all the expense in procuring the lot.
    The deed, which was of the same date, and for the consideration of love and affection, and also of 300 dollars, contained a covenant only, that C. A. Tucker was heir to John Tucker. It was further proved, that the defendant and B. H. said, at the time, that there was some person on the lot, and that there would be a great deal of trouble about it. C. A. Tucker, in the summer of 1808, executed a deed of the lot to the plaintiff, who gave him 100 dollars, and an indemnity against former deeds.
    The plaintiffs then gave in evidence a patent of lot No. 14. in Sempronius, granted to John Tucker, and offered in evidence a declaration in ejectment in this court by James Jackson, ex dem. John Tucker, Charles A. Tucker, William D. Williams and others v. Elias Davis. Another declaration of James Jackson, on the demise of the same lessors, against Jether Bailey, both of which were of November term, 1806.
    The plaintiff further proved, that William Wickham (father of the plaintiff) was attorney for Bailey and Davis, in the ejectment suits, in ISO?1 and 1808; and that the suits were noticed for trial, at the September circuit, ip 1808, in Onondaga. That the causes were called on for trial, by the judge at the circuit; that Bailey and Davis were in possession in 1808, and claimed to be owners under the plaintiff.
    The counsel for the defendant moved for a nonsuit, on the following grounds: 1. Because the plaintiff had. proved champerty, and not maintenance; 2. That the defendant appeared to be an equitable owner with Herrick and Williams; and it was not maintenance to prosecute an action in the name of Williams, his trustee; 3. That there was no evidence that Bailey and Davis held under colour of title. The motion for a nonsuit was overruled by the judge.
    The defendant proved, that in July or August, 1808, Jeremiah Conklin went, at the request of B. Herrick, to Charles A. Tucker, for a warrant of attorney to prosecute the ejectment suit; that Tucker told him he had never sold his right, until he sold it to W, D. Williams, and said he did not know where the land lay, nor of any person in possession; that Tucker refused to give a power of attorney, and said he had given a deed to the plaintiff. The defendant proved that Herrick, Williams a;id himself, were jointly interested in the land, and prosecuted the ejectment suits, at their joint expense.
    The judge charged the jury, that it was a material point, whether at the time the defendant and Herrick made the contract with Tucker, there was any person in possession of the land claiming adversely, and whether the defendant knew it; that it was proved that Bailey■ and Davis were in possession, and had cleared a part, and that the jury might, from circumstances, presume they held adversely, under colour of title, though no deed was shown under which they held, and that the defendant knew it; that there were several circumstances tp show that defendant knew he was buying a lawsuit; that the prosecution of a suit by Conklin and others, for their own benefit, was lawful, and the deed was good; but that as Charles A. Tucker was a lessor, it was maintenance if the land was held, at the time, adversely; that he thought the proof strong and conclusive, and re.commended a verdict for the plaintiff. The jury found a verdict for the plaintiff, for 500 dollars.
    
      A motion was made to set aside the verdict and for a new trial; 1. Because improper evidence was admitted; 2. Because the plaintiff ought to have been nonsuited at the trial; 3. For the misdirection of the judge.
    
      Buggies, for the defendant.
    1. There is a variance in the declaration from the statute, in using the word “ should,” instead of shall; and in reciting the 9th section, the word “ that” is introduced, where it is not to be found *n t^le section. When a person undertakes to set forth a Pu^'c act> the least misrecital is fatal.
    
    2. The action is brought on the 9th section of the act to recover the penalty; but the verdict is founded on the 8th section, which is against the buying and selling of pretended titles, and the offender forfeits the value of the land. The 9th section prohibits maintenance, and gives the penalty of 250 dollars, for every offence. If, therefore, the plaintiff cannot bring this case within the ninth section, he cannot recover. This section is copied from the English statute, and the decisions of the English courts are in point.
    
      Maintenance is defined to be an officious intermeddling in a suit that does not belong to one, by maintaining or assisting either1 party with money, or otherwise, to prosecute or defend it. There is a great difference between purchasing a pretended title, and maintenance. If the party buys a pretended title, he forfeits the value of the land. If he upholds the suit of another, he forfeits 250 dollars. As the plaintiff sues for the penalty of 250 dollars, the offence charged, if any, must be maintenance. In an- action for maintenance, the plaintiff must show that a plea was pending, and the defendant may plead nul tiel record.
    
    Again, it is stated in the declaration to have been an action by James Jackson v. Jether Bailey ; but it is not stated for what precise thing the suit was brought. Jackson is a fictitious person, and the lessors are not named. The description of the suit is insufficient; and the plain-r 11 tiff, on that ground, ought to have been nonsuited. As to the purchase of the pretended title, it was more than a year before the commencement of this suit, and will not, therefore, support an action.
    3. The evidence of adverse possession was not sufficient. To render a deed void on this ground, there should be clear and satisfactory evidence of an adverse possession at the time. A person who has an interest in land, certain or contingent, legal or equitable, may lawfully uphold another in an action concerning such lands. To constitute the offence of maintenance, there must be an intermeddling by the party in a suit where he has no . , _ concern or interest in the subject matter of controversy. The suits in the present case, were certainly for the interest and benefit of the defendant.
    Again, how can an action for máintenance be supported while the suit, the bringing of which is alleged to be maintenance, is still pending? How can the court’say, but that the plaintiff in that suit may recover, and so establish the title of the present defendant ?
    y. Duer and Banner, contra.
    1. Using the word should, instead of shall, or the past, instead of the present tense, cannot be a fatal variance, in reciting a statute. In Boyce v. Whitaker,
      
       the statute was so recited; no objection was made on that account. In King v. Hall,
      
       which was a conviction on an information, the court said, that it was better to state it in the time past, than in the present tense. In Patridge v. Strange,
       the act is recited m the same manner. The rule laid down by Lord Mansfield, in Boyce v. Whitaker, that in reciting an act of parliament, the party was to be held to half a letter, is unreasonable, and contrary to former decisions. The true rule is laid down in Ventris,
      
       that where the recital answers the sense of the statute, it is sufficient.
    In Say and Seale v. Stephens, the court held that a misrecital, to be fatal, must be in the substantial part of the act. And for or, has been held not to be a fatal variance. It is true, in King v. Marsack,
      
       it was held otherwise, but on the ground that the variance, in that case, changed the sense of the statute.
    But the plaintiff does not profess to set out the statute verbatim, but only the substance of it.
    2. This action is not brought against the defendant for purchasing a pretended title, but for maintenance. The evidence, as to the pretended title, was introduced to show that the plaintiff had no title, legal or equitable.
    The statute creates no new offence; it merely super-adds a penalty. The offence mentioned in the first section is properly champerty, a species of maintenance. Our act is not borrowed from any one English statute, but is taken from several statutes. The 1st section is from 1 West. c. 5. and the 9th section from 32 Hen. VIII. c. 69.
    We must look to the common law for a definition of maintenance. It is where one person assists another with money to carry on a cause. The evidence shows that the defendant purchased the title with a view to the suit; and it is manifest he was aware, at the time, of an adverse claim.
    3. Then, had the defendant any interest in the land which could justify him in upholding the suit ? There can be no doubt, from the evidence, that the purchase was of a pretended title. An adverse possession is where the person in possession claims title, and the declarations of the tenant are admissible evidence. If there was an adverse possession, the deed was absolutely void; for where the law declares a thing unlawful, if done, it avoids it when done. It was so decided by this court in Jackson, ex dem. Jones, v. Brinckerhoff,
      
       which was recognised in Williams v. Jackson.
    
    
      It is said that the suit was for the benefit and interest of the defendant. But the prosecution of a suit, after the purchase of a pretended title, though for the benefit of the purchaser, is maintenance. It was so decided in Flower’s case, which is precisely in point. The same objection which has been made here, was made in that case; but the court of starchamber held it to be maintenance.
    
    There could be no trust in this case, for if the purchase was illegal and void, it could raise no trust or interest for the defendant. If there was any agreement between the defendant and Williams, as to the suit, it was champerty.
    
    
      
      
        Doug. 94. 97. 1 Ld. Raym. 381. 7 Term Rep. 771. Chitty Pl. 217, 218.
    
    
      
       4 Bl. Comm. 134. Hawk. P. C. b. 1. c. 83. s. 1. 12.
    
    
      
      
        Savil, 41, 42.
    
    
      
      
         Hawk. b. 1. c. 85. s. 42.
    
    
      
      
         Hawk. P. C. b. 1. c. 83. s. 17, 18. 21, 22. 2 Roll. Abr. 115. 117, 118 Bac. Abr. Maint.(B)
      
    
    
      
       Doug.94.
    
    
      
      
         1.Term Rep. 320.
      
    
    
      
       1 Saund. 262.
    
    
      
      
        Plowd. 78.
    
    
      
       2 Vent. 215. 2 Bulst. 47.
    
    
      
      
        Cro. Car. 136.
    
    
      
      
         Cro. Eliz. 307.
    
    
      
       6 Term Rep. 771.
      
    
    
      
      
         Hawk. b. 1. c. 83. s. 4. 1 Inst. 368. b. 369. a.
    
    
      
       l Johns. Rep. 163.
    
    
      
      
        Cited 5 Johns. Rep. 500.
    
    
      
      
        Hob. 115. Moore, 761. Noy, 52.
      
    
   Per Curiam.

The ground of the action consists in the charge of unlawful maintenance, in carrying on the ejectment suits. But if the defendant had any interest, legal or equitable, in the land, which was the object of the suits, there was no foundation for the charge of maintenance. (2 Roll. Abr. 115. g. 117. Hawk. tit. Maintenance, s. 12, 13. 17, 18.) The defendant and Herrick purchased of Charles A. Tucker, his interest, as heir to his brother John, in the military bounty lands, and took a deed, regularly drawn and executed, and paid 5 dollars down, and gave a bond for 45 dollars, to be paid, on condition that the title, so granted, prevailed. This deed was taken in the name of W. D. Williams, but on their joint account. The defendant had then an equitable interest in the land, and if any interest passed, Williams took it as trustee for the joint concern. This deed was given in June, 1806, and it was valid and operative, unless the land to which it related was held at the time adversely. It was incumbent upon the plaintiff to make out this fact affirmatively and clearly, if he meant to destroy the operation of the deed on that ground. There is certainly no sufficient evidence of the existence of that fact at the date of the deed.. There is no evidence that Bailey and Davis were on the land as early as June, 1805. They were, afterwards, in possession, and held under the plaintiff; but the plaintiff’s deed from Tucker was as late as 1808, and he did not show any other source of ti- • tie. There were some loose sayings, that some person was on the land when the deed was taken, but who it was, or, under what claim or title, did not appear. It will not do to declare a deed void, upon such light and equivocal testimony of adverse possession. The adverse possession ought to have been made out, by positive facts, and not by mere inference or conjecture.

If the deed of June, 1806, was not absolutely void, then the charge of maintenance falls to the ground, and the plaintiff ought to have been nonsuited, in pursuance of the motion made at the circuit.

But if the deed did not operate, by reason of the adverse possession, yet the testimony does not make out the crime of maintenance, in the strict legal sense. The defendant did not officially intermeddle in the prosecution of another’s right, but he was undoubtedly prosecuting this suit for his own benefit. He may have purchased a pretended title, scienter, so as to have subjected himself to the penalty given in the 8th section of the statute, but that is not the offence charged. Maintenance, strictly speaking, is the assisting another person in a lawsuit, without having any privity or concern in the subject. There can be no doubt that the defendant was using the, name of Tucker, as a mere nominal lessor, not for the benefit of Tucker, but as a trustee for his own benefit, and that of the other persons connected with him in the purchase. In no view of the case, then, does the charge appear to be made out; and, without attending to other-objections which were made upon the argument, there must be judgment of nonsuit entered, according to a stipulation in the case.

Judgment of nonsuit.  