were not accurately attended to, if the proceedings were manifestly erroneous on the face of them, we have considered the proceedings as removed on certiorari and have quashed them; at the same time declaring that this was an indulgence to the parties from an erroneous practice which must be corrected. 3. BALDWIN, ET AL. V. CALKINS, ET AL. 10 Wend. N. Y. Rep. p. 167. Certiorari to the judges of Onandaga to remove proceedings on assessment of damages for overflowing land. On revers ing the pro ceedings of the judges or court for assessing erecting a court have no power to verse them Per Cur. Savage, C. J. The defendants in error, contend of an inferi that the assessment of the judges is conclusive as to the amount of damages. It would be so undoubtedly, had the assessment damages for been made upon correct principles. It is not in the power of dam, the this court to review the assessment as to its amount, and increase or diminish the amount; that is a subject not under our controul. send back the proceed Upon certiorari we can only look into the correctness of the pro-ings, but ceedings of the judges as they appear upon the record; the evi- must re dence before them as to the amount of damages, constitutes no in toto. part of the record. But we have a right, and it is our duty to inquire into the principles, upon which the judges assessed the damages, and if they were erroneous, the whole assessment must be set aside. I apprehend we have no power, even to send the proceedings back to the judges, but that new proceedings must be instituted, if the defendants in error wish to pursue the remedy which they have according to the preceding principles. The judges having heard the case, and given their certificate, are functus officii, and can no more entertain jurisdiction of the matter again, without new proceedings, than a justice can try a cause again, after reversal of his judgment, until a new suit is brought, where such suit is consistent with the decision reversing his previous judgment. The proceedings of the judges must be reversed. Champerty and Maintainance.* 1. THALLHIMER V. BRINKERHOFF. April T. 1824. 3 Cowen's N. Y. The Chancellor. The laws against champerty and maintain- The object *Is the unlawful taking in hand or upholding of a cause for another person. of the laws VOL. III. 18 against champerty ance were intended to prevent the interference of strangers, hav and main ing no pretence of right in the subject of the suit, and standin g in no relation of duty to the suiter. tainance. The same rules apply both to 2. THALLHIMER V. BRINKERHOFF. April T. 1824. 3 Cowen's N. The Chancellor. The same rules and exceptions apply both champerty to champerty ond maintainance, the former being maintainance tainance. in a particular form. and main Conveying land held 3. WILLIAMS V. JACKSON. Feb. T. 1809. 5 Johns. N. Y. Rep. 490. Per Cur. If a person out of possession, conveys land held Maintainance is an offence that leads a near relation to barratry; being an officious intermeddling in a suit that in no way belongs to one, by maintaining or assisting either party with money, or otherwise to prosecute or defend it, a practice that was greatly encouraged by the introduction of uses; 4 Comm. c. 10. p. 134. Maintainance is either ruralis, in the country; as where one assists another in his protentions to lands, by taking or holding the possession of them for him; or where one stirs up quarrels or suits in the country; or it is curialis, in a court of justice where one officiously intermeddles in a suit depending in any court, which no way belongs to him, and he had nothing to do with, by assisting the plaintiff or defendant with money, or otherwise in the prosecution or defence of any such suit; Co. Litt. 368; 2 Inst. 213; 2 Roll. Abr. 115. Not only he that lays out his money to assist another in this cause, but he that by his friendship, or interest saves him expense which he might otherwise be put to, is guilty of maintainance; Bro Maint. 7. 14. 17. &c. And if any person officiously give evidence, or open the evidence without being called upon to do it; speak in the cause as if of counsel with the party; retain an attorney for him, &c. or shall give any public countenance to another in relation to the suit, as where one of great power and interest says, that he will spend £20. on one side, &c. ; or such a person comes to the bar with one of the partics, and stands by him while his cause is tried, to intimidate the jury; if a juror solicit a judge to give judgment according to the verdict, after which he hath nothing more to do, &c. these acts are maintainance; Hawk. P. C. c. 83. But counsel may speak as amicus curiæ. A man cannot be guilty of maintainance in respect of any money given by him to another, before any suit is actually commenced; nor is it such to give another advice, as to what action is proper to be brought, what method to be taken, or what counsellor, or attorney to be employed; or for one neighbour to go with another to his counsel so as he does not give him any money; and money may be lawfully given to a poor man out of charity, to carry on his suit, and be no maintainance. Attorneys may lay out their money for their clients, to be repaid again, but not at their own ❤xpense, on condition of no purchase no pay, if they carry the cause or lose it. By the common law, persons guilty of maintainance may be prosecuted by indictment, and be fined and imprisoned, or be compelled to make satisfaction, by action, &c. And a court of record may commit a man for an act of maintainance done in the face of the court; see on this subject, Co Litt. 386, b.; 2 Inst. 203. 212; 1 Hawk. P. C. c. 83. s. 1; 4 Bac. Abr. Maintainance; Russel, Crimes and Mindemeanors 176, 2nd Edit. Master v. Miller, 8 T. R. 341.. by another, adversely by another, such conveyance is void for maintainance, adversely and the title to the land remains in the grantor, though he is sub- is maintain ject to the penalty in the statute. 4. TEELE, qui tam. v. FONDA. Nov. T. 1810. 7 Johns. N. Y. Rep. p. 251. (252.) ance. chases is Per Cur. Where a person purchases land, knowing at the And the per time that the same is held adversely to the person of whom he son who pur purchases, by persons claiming by deed, he is liable, under the guilty of "act to prevent and punish champerty and maintainance," to an ance and lia action for the value of the land, held adversely, and the improve-value of the ments thereon. 5. TOMB, qui tam. v. SHERWOOD. May T. 1816. 13 Johns. N. Y. Rep. 289. maintain land; the land im This was an action against the defendant on the statute to pre- Not only of vent and punish champerty and maintainance for buying the pre- proved but tended title of one M. to a piece of land of about 115 acres, of which owned by the plaintiff. It appeared that the plaintiff had only improved about 20 acres of the land, the rest being vacant. The defendant being brought within the statute, it was contended that he was liable only for the value of the land improved, and not for the value of the whole lot. But by the Court, Van Ness held, that he was liable for the value of the entire lot, of which the 20 acres was a parcel, and which were claimed in connexion with it. 6. TOMв, qui tam. v. SHERWOOD. May T. 1816. 13 Johns. N. Y. Rep. 289. of the whole .it is parcel, certificate Per Cur. Van Ness, J. Where a person obtained a certifi- And the as cate from the surveyor general of the state, that he purchased a signee of a lot of land, and the land was then sold under an execution of land is li against him, and he afterwards assigned the certificate, the as- able to the signee is liable to the penalty of the statute against champerty en by the and maintainance. penalty giv statutes. 7. HASSENFRATS, qui tam v. KELLY. Oct. T. 1816. 13 Johns. N. But a per Action of debt on the statute, to punish champerty and main- son who con veys with out a knowl edge of an adverse pos session is not liable. tainance against the defendant for selling.a lot of land, held adversly to him at the time of sale. It appeared that at the time the defendant made the conveyance he had no knowledge of the adverse possession of the plaintiff. Per Cur. Spencer, J. A person who sells and conveys land, without the knowledge that there is a subsisting adverse possession, is not liable to the penalty for selling a pretended title, under the act to prevent champerty and maintenance. 8. LANE, qui tam. v. SHEARS. Oct. T. 1828. 1 Wend. N. Y. Rep. 433. S. P. TEELE V. FONDA. 7 Johns. Rep. 251: HASSENFRATS V. KELLY. 13 Johns. Rep. 466." But the per Per Cur. Sutherlard, J. to know the situation of the land. Possession A person selling, is presumed conland as to adverse possessions. 9. JACKSON V. HUDSON. Ang. T. 1808. 3 Johns. N. Y. Rep. 370. Per Cur. Kent, C. J. The possession of the native indians, by native is not such an adverse possession, as to render subsequent alnot adverse. ienations, by the patentees, void, on the ground of mainten Indians is ance. 10. Purchasing JACKSON, ET AL. V. KETCHUM, ET AL. Oct. T. 1811. 8 Johns. Per Cur. The purchaser of land, during the pendency of a suit land during concerning it, if made with a knowledge of the suit, and notincon the penden summation of a previous bargain, is guilty of champetry, though concerning notpunishable under the statute, for selling a pretended title. cy of a suit it, is cham perty. And it is im material 11. TOMB, QUI TAM. V. SHERWOOD. May T. 1816. 13 Johns. N. Y. Per Cur. Rep. 289. Van Ness, J. Where a person undertakes to sell whether the land which is held adversely to him, it is immaterial whether his title of him title or claim were good or bad, the parties to such sale will be veys is good equally within the statute against champerty and maintainance. who con or bad. The provi sions a 12. CALDWELL'S ADMS. V. SHEPHERD'S HEIRS. Dec. T. 1827. 6 Per Cur. Bibb, C. J. We are not disposed to relax the rules perty and ance are of Common Law, nor the statute against champerty and main-gainst cham tainance. They are wise and politic, and tend to promote the maintain peace and security of society. But those provisions are weapons of defence of the persons in possession, not of annoyance defence for and attack, by champertors and maintenors, against those who sors of land. are the victims of the champerty and maintainance. 13. BURT V. PLACE. October T. 1825. 6 Cowen's N. Y. Rep. 431. weapons of the posses tainance Per Cur. Savage, C. J. An agreement to aid in defending a It is main suit, with one who is not licensed as attorney or counsel, is ille- where a per gal and void for maintainance. 14. son defends KEY V. VATTIER. 1 Hammond's Rep. 132, and Ohio Cond. Rep. Eel. 65. S P. THURSTON V. PERCIVAL. 1 Pickg. Mass. Rep. 415. And so of one who is The defendant contracted with the plaintiff who was an attorney to prosecute suits for the recovery of land, and receive licensed, if a moiety of the property recovered as a compensation for his services. he agree to receive a part of the proceeds of compensa Per Cur. Burnet, J. The Court are now to decide, whether a suit as a this contract amounts to a champerty and maintainance. The tion for his contract in this case shows that the plaintiff was to intermeddle services, in the suits of Vattier, by assisting him with his services, and by the payment of costs, which comes most unquestionably within the definition of maintainance. In addition to this, the plaintiff and his partner, in consideration of that intermeddling, are to receive a moiety of the land, or whatever else may be recovered. These facts, most unequivocally constitute the of fence of champerty. 15. ÅRDEN, ET AL. v. PATTERSON, ET AL. 1820. 5 Johns. N. Y. an attorney The Chancellor. Where an attorney purchases from his client Or where the whole subject matter of controversy, for his own benefit, purchases though he may have had some interest of his own, it is cham- the whole perty. 16. RUST V. LARUE, ET AL. Fall T. 1823. 4 Little's Kentucky Rep. 425. controversy for his own benefit. It is not es Per Cur. It is not essential to the offence of champerty, sential to |