(dissenting) At the trial, the plaintiff was nonsuited, on the ground that the agreement was unlawful and void, and could not be the foundation of an action. On the argument of this case, other grounds were taken, to show that the plaintiff could not recover ; but I waive the consideration of them at present, and proceed to examine the question, whether this agreement was unlawful, as being against the provisions of the statute to prevent and punish champerty and maintenance.
This question arises under the first section of the act, (1 N. R. L. 172.) which declares, “ that no officer, or other person, shall take upon him any business that is or may be in suit in any Court, for to have part of the thing in plea or demand: and no person upon such agreement shall give up his right to another. And every such conveyance and agreement shall be void.” The ninth section declares, “ that no person shall unlawfully maintain, or cause or procure any unlawful maintenance, in any matter or cause whatsoever, in suit or variance, concerning any lands, tenements, hereditaments, or any goods, chattels, debts, damages or offences, in any court in this state, or before any person who shall have authority to hear or determine concerning the same.” These provisions contain the substance of several English statutes, which have received a judicial expositipn in the Courts of that country, in various adjudged cases. The de-= cisions under those statutes must be considered as forming a part of the common law, and, consequently, will serve as landmarks to guide us in the application of the statute to the case under consideration. It is true, our act has one provision, more explicit than is found in the English statutes ; it is declared, “ that every such conveyance and agreement shall he voidbut these expressions cannot vary the rule of construction, because the words declare no more, than the law *400would have declared had this clause been omitted. An aSreement expressly prohibited by statute, must necessarily be considered inoperative and void. It will not be seriously urged, that the party is subject to the penalty only, and that the Court are bound to consider the contract legal and valid.
The first section relates to champerty; the ninth, te maintenance. The latter is defined to be “ an officious inter-meddling in a suit, that no way belongs to one, or in which the party has no interest, by maintaining or assisting either party with money, or otherwise, to prosecute or defend it the former is “ a species of maintenance, being a bargain with a plaintiff or defendant to divide the land, or other matter sued for, between them, if they prevail at law.” (4 Black. 134. 2 Chitty’s Crim. Law, 115.) Both were of-fences at the common law, and punishable by fine and imprisonment. In giving a construction, we must consider the nature and extent of the evil intended to be remedied. In the definition of maintenance, it will be seen, that persons, who have any interest, are not included; so, also, if the agreement is founded on the ties of blood, it has been uniformly held, not to come within the purview of the statute. (8 Johns. Rep. 484. Hawk. 131. ch. 84.) Without resorting to cases, it would seem to be most unreasonable to prohibit kindred from assisting their near relations, or to subject an individual to punishment, who aided in the recovery of property, in which he had an interest, however contingent.
The statutes concerning champerty and maintenance, were intended to operate against strangers. The evil intended to be prevented, is well described in 1 Leon. 167. : “ When many thought they had title or right unto any land, they, for the furtherance of their pretended right, conveyed their interest, in some part thereof, to great persons, and with their countenance did oppress the possessors.” It-is with reference to such cases, that Blackstone speaks of the actors as “ pests of civil society, that are perpetually endeavouring to disturb the repose of their neighbours, and officiously interfering in other men’s quarrels, even at the hazard of their own fortunes.” These statutes must be construed so as to effect the intention of the legislature *401which may be collected from the cause or necessity of the law 5 when that is discovered, it ought to be followed, with reason and discretion, in the construction, although such construction may seem contrary to the letter. (6 Bac. tit. Stat. I. 384.)
The early cases seem to have followed a literal construction, which the good sense of later times has exploded. In Master v. Miller, (4 Term Rep. 340.) Justice Butter observes, " at one time, not only he who laid out money to assist another in his cause, but he that, by his friendship or interest, saved him an expense, which he would otherwise be put to, was held guilty of maintenance; nay, if he officiously gave evidence, it was maintenance 3 so that he must have had a subpoena, or suppress the truth. That such doctrine., repugnant to every honest feeling of the human heart, should be soon laid aside, must be expected. Accordingly, a variety of exceptions were soon made, and, amongst others, it was held, that if a person has any interest in the thing in dispute, though on contingency only, he may lawfully maintain an action on it.” (2 Roll. Ab. 115. Bro. tit. Maintenance, 7. 14. 17.)
In 1 Hawk. B. 1. ch. 84. sec. 19., it is laid down, that a conveyance by a father to his son, or by an ancestor to his heir apparent, is not within the statute, since it only gives them the greater encouragement to do what by nature they are bound to do. (1 Bac. Ab. 576.) So, also, the husband may maintain where the land may descend to his wife. (15 Vin. Ab. 162. H. 3. 1 Hawk. B. 1. ch. 83. sec. 20.) A brother of the half blood shall not maintain, because there is not an immediate possibility to inherit between them; but a brother of the whole blood is -not within the statute, for he may inherit. (15 Vin. Ab. 162. H. 9.) On the same ground, to wit, the possibility of inheriting, it is lawful for the husband of a cousin, who may be heir, to maintain in any action j but, if the feme dies without issue, it is otherwise. (Bro. Maintenance, pl. 18. 15 Vin. Ab. 168. O.9.) On the ground of interest, it is not necessary that a party should have a certain legal or equitable interest; it is enough, if it be shown, that there is a bare contingency of such an interest, •in the lands in question, which, possibly, may never come *402in esse ; and, in such case, one may lawfully maintain ano^er jn an action concerning such lands. This doctrine appears to be fully recognised in 2 Roll. 117. 1 Hawk. B. 1. 83. sec. 13, 14. If the principles laid down in the preceding cases are recognised as sound law, they clearly prove, that the agreement made between the plaintiff and Teller, is not within the statute; for the plaintiff, having intermarried with the sister of Teller, had a contingent interest in the lands sought to be recovered. The extent of such interest is no where made the criterion, by which the lawfulness of the agreement is to be decided. In the present case, the contingency rested on this : had Teller died intestate, and without issue, then the plaintiff’s wife, by the rules of descent, would inherit as heir to her brother ) and, whether the property acquired was real or personal, the plaintiff would thereby obtain a beneficial interest. This ground alone is enough to protect the plaintiff against the operation of the statute, independent of the affinity existing between the parties.
The offence of champerty consists in the unlawful maintenance of a suit, in consideration of a bargain to have part of the thing in dispute. This, according to the doctrine before advanced, must evidently mean the purchase of a part to which a party had not even a contingent right; but here no such purchase was made; the plaintiff had a contingent, or possible interest, in the whole of the lands, depending on the happening of subsequent events, which might, or might not, vest the right. The plaintiff has, then, done no more than to reduce this contingent interest to certainty, by accepting a covenant to convey one fourth, in case of a recovery, which may not have been more than the value of his contingent interest. Be that as it may, he was a purchaser having an interest, and that distinguishes it from a purchase which the statute renders unlawful.
The preceding view of this case seems to dispense with the inquiry, whether there is proof that the lands were held adversely. I will content myself by observing, that if an adverse possession can be presumed, the facts may warrant that presumption ; but this is not sufficient. The party who insists that a deed is void, must make out the fact of ad*403verse possession affirmatively and clearly. An entry adverse to the lawful owner, is not to be presumed, but must appear by proof, and be made out by positive facts, and not by inference or conjecture. (9 Johns. Rep. 168. 8 Johns. Rep. 227. 3 Johns. Cases, 125.) But, it is contended, that the agreement contemplated only a conveyance of the property, and, consequently, the action cannot be supported. I do not construe the agreement in this manner; it is true, Teller is to convey one fourth of the property recovered; and had an actual recovery and possession of the land been obtained, that was undoubtedly the primary sense of the parties ; but it is not to be restricted to this only. The property generally was in view; and whether the fruits of a recovery were the land itself, or the proceeds of the land, they were equally in contemplation. When recovered, the plaintiff became entitled to one fourth. I think this intent may be fairly inferred, when the relative situation of the parties is considered. Teller was the heir at law; the suits necessarily must be conducted in his name ; a long and expensive litigation may have been foreseen and expected ; Teller had the power of terminating the causes whenever he thought proper, by compromising with the possessors, and accepting an equivalent for a release of his title. When the defendant speaks of the property recovered, I consider it applicable to property generally, whether real or personal; the obvious intent being, that the plaintiff should participate, to the amount of one fourth of the avails; accordingly, we find, after several years of litigation, Teller exercised the power with which he was vested, and authorized an extinguishment of his claim. This was carried into effect by the defendant, who had been the attorney of Teller and the plaintiff, in the prosecution of the suits. By virtue of a power from Teller, he compromised the suits, and received 54,000 dollars, which, for aught that appears, remains in his hands.
The plaintiff claims the one fourth of this money, under the agreement, as the property recovered. I am satisfied the claim is well founded. By a just construction of the instrument, one fourth part of this money was had and received by the defendant to the plaintiff’s use; and it being no where alleged that any part has been paid over to Tel*404ter, without notice of the plaintiff’s claim, the defendant is tiable. If the view I have taken be correct, it follows, that the action is well brought in the name of the plaintiff solely, and the objection that Teller is not joined, falls to the ground. I am of opinion, that the nonsuit ought to be set aside, and a'new trial granted.
Motion denied.