the subsequent cases of Cruise v. Riddle, 21 Ala. 791; and Bates v. Herron, 35 Ala. 117.

* *

Section 2290, Rev. St. U. S., provides that any person applying to enter land for a homestead, shall, upon making the prescribed affidavit, and paying the requisite sum, be permitted to enter the land specified. The succeeding section declares that he shall be entitled to a patent, if, after the expiration of five years, he proves by two credible witnesses that he resided on or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of the land has been alienated, except as authorized by law, and that he will bear true allegiance to the government of the United States. It is true, the same section declares that no certificate or patent shall issue until the expiration of five years from the date of the entry; but this evidently refers to the certificate to be issued after the proof that the conditions of the entry have been complied with. Compliance with the provisions of section 2290, and an entry made in accordance therewith, vest an estate or right in the settler,—a right to enter land and occupy. This is manifest from the provisions of section 2297, which provides: “If at any time after the filing of the affidavit, * * * and before the expiration of the five years, * * * it is proved, after due notice to the settler, * that the person having filed such affidavit has actually changed his residence, or abandoned the land for more than six months at any time, * * ** the land so entered shall revert to the government." There can properly be no reversion, unless some right or estate has passed out of the grantor. The defendants showed no title or right whatever. So far as the evidence discloses, they are mere trespassers. The estate of the plaintiff acquired by the entry, whatever may be its extent, or the character of the title, is an estate on condition. Whether the condition has been complied with, or whether there has been a forfeiture, can only be ascertained in a direct proceeding instituted for that purpose. A mere trespasser cannot inquire whether there has been a breach of the condition, and cannot set up as a defense a failure to perform the condition. Though the title of the plaintiff does not become complete until the conditions have been performed, the receipt given by the receiver of the public moneys in full, for lands entered under section 2290, vests in the plaintiff, under the statute in this state, a legal title sufficient to maintain an action of ejectment, or the corresponding statutory real action, and must be received as evidence of such title in such action. It follows that the court erred in giving the affirmative charge in favor of the defendant.

Reversed and remanded.

PRICHARD et al. v. MILLER et al.

(Supreme Court of Alabama. April 12, 1889.)

INTEREST-CONSTRUCTION OF NOTE AND MORTGAGE.

The body of a note made no reference to interest, but in the margin were figures representing both principal and interest from date to maturity. A mortgage, executed as part of the same transaction, recited that it was given to secure the payment of this note, "with interest from its date to maturity." Held that, construing the two instruments together, they sufficiently show that the note bears interest from date.

Appeal from chancery court, Mobile county; COLEMAN, Chancellor. This was a bill filed by Thomas P. Miller & Co. against Cleveland Prichard and others, to foreclose a mortgage given by defendants to complainants to secure the payment of a note of even date with the mortgage. The mortgage, as is alleged in the bill, was given to secure the prompt payment of a note for

$3,750, "with interest from its date to maturity." This was the language of the mortgage. The note was in the following language:

66

"3,750 & Int. 174.20

MOBILE, Nov. 7, 1885.

"3,924.20.

"On June 1, 1886, after date,

promise to pay to C. & H. Prichard or

order thirty-seven hundred and fifty dollars. Value received. Negotiable and payable at banking-house of Thomas P. Miller & Co. "No. 13973.

CLEVELAND PRICHARD. "PRICHARD & CARTER."

The note was indorsed in blank. The mortgage and note were contemporaneously executed as part of one transaction. As is shown by the allegations of the bill, the mortgage, in terms, secures the debt as witnessed by the note, "with interest from its date to maturity." Defendants interposed a demurrer on the ground that the allegations of the bill and the note were inconsistent. The chancellor overruled this demurrer, and defendants appeal. Fred. G. Bromberg, for appellants. Pillans, Torrey & Hanaw, for appellees.

SOMERVILLE, J. The suit is for the foreclosure of a mortgage. The note which evidences the mortgage debt, and the mortgage itself, were executed on the same day, bear the same date, and are parts of the same transaction. They constitute, therefore, but a single contract, and must be construed together, as if they were embodied in but one instrument. They are both, moreover, made exhibits to the bill, and this is the same in effect as an incorporation of the writings in the body of the bill.

The figures in the margin of the note include in the amount both principal and interest. In the body of the note no interest is included. If this stood alone, the amount specified in the body of the note would control, and dominate the larger amount in the margin. 1 Rand. Com. Paper, § 105, and cases cited. But the mortgage corrects this apparent incongruity by the assertion that the note bears interest; describing it as bearing interest from date to maturity, and otherwise fully indentifying it. The bill alleges that this is the identical note secured by the mortgage, and the demurrer admits the truth of this allegation. Construing the two instruments as one contract, they sufficiently show that the note bears interest from date. The demurrer is based upon the view that the note bears no interest, and was therefore properly overruled. Affirmed.

GILMAN et al. v. JONES et al

(Supreme Court of Alabama. April 10, 1889.)

1. CHAMPERTY AND MAINTENANCE-WHAT CONSTITUTES.

Pending a suit for certain bonds issued by the N. O. & S. R. Co., the defendants, who were the owners of the S. & G. R. R., and who desired to lease the N. O. & S. road in order to run their cars to a certain point without the expense of a heavy rental, which they had been paying to a third road for that purpose, entered into negotiations with the litigant bondholders for such lease. All of them consented except the plaintiff, and to consummate the arrangement the defendants purchased the bonds of the plaintiff. The bonds were not to be delivered until the termination of the suit. The litigation was to be continued in the name of the seller, and the purchaser was to pay the attorneys' fees and legal expenses, except a certain retainer fee. Held, that the defendants had a sufficient interest in the suit so as to rescue the transaction from the objection of being void for champerty.

v.5so.no.26-50

2. CONTRACTS-CONSTRUCTION.

Where a certain additional sum was agreed to be paid for said bonds in case it should be finally decided in said suit that they were a superior lien to the other bonds of the same issue, the plaintiff had no right to such additional sum, where the record showed that equal priority was accorded to certain other bonds of the same issue.

Appeal from city court of Montgomery; T. M. ARRINGTON, Judge. Brickell, Semple & Gunter, for appellants. Roy & Pettus, for appellees.

SOMERVILLE, J. The action is one of trover, brought by the appellants against the appellees for the alleged conversion of 58 bonds, of $1,000 each, issued by the New Orleans & Selma Railroad Company. There are also two counts, added by way of amendment, in case, based on the alleged unlawful use of the bonds, and of the decree of the chancery court in which they were merged.

The main point of controversy in the case is whether the contract of August 16, 1879, between the plaintiffs, Gilman Son & Co., on the one side, and the defendants, A. W. Jones and D. S. Troy, as trustee, on the other, is void for champerty. Under this agreement, which was made in the state of New York, Jones purchased from the plaintiffs these bonds, for which a suit, by cross-bill, was then pending in the city court of Selma, Ala., sitting in equity. Morton v. Railroad Co., 79 Ala. 590. They were to be held in trust by the defendant Troy, who then had custody of them as an attorney of the appellants, and were not to be delivered until the termination of the suit, and the payment of the agreed price. The litigation was to be continued in the name of the sellers, and the purchaser was to pay the attorneys' fees, and "legal expenses incurred and to be incurred," except a retainer fee of $250 due by the present plaintiffs to their attorneys in that suit. It is shown that in the state of New York, where this contract was entered into, there was no law of champerty which would render it illegal. The contract consequently was legal when tested by the law of that state. Sedgwick v. Stanton. 14 N. Y. 289; Thallhimer v. Brinckerhoff, 3 Cow. 623. But as the agreement of the parties was to be carried into effect in the state of Alabama, where the suit was pending, the question of its legality would probably be governed by the laws of the latter state, according to the authorities, and we shall so consider it. 1 Add. Cont. (Morgan, Amer. Ed.) § 257, p. 391; Grell v. Levy, 16 C. B. (N. S.) 73; Richardson v. Rowland, 40 Conn. 565.

Champerty is a species of maintenance, which at common law was an indictable offense. Maintenance was an officious intermeddling in a lawsuit by a mere stranger without profit. Champerty involved the element of compensation for such unlawful interference by bargain for part of the matter in suit, or some profit growing out of it, or, according to some of the authors, as well also for the whole of the thing in dispute. 1 Hawk. P. C. 462, 463; 3 Amer. & Eng. Cyclop. Law, 68, 69; Holloway v. Lowe, 7 Port. (Ala.) 488; Poe v. Davis, 29 Ala. 683; Ware v. Russell, 70 Ala. 174. It would accomplish no good to quote at length the numberless definitions of these offenses given in the old books. Sir James Stephen, in his Digest of Criminal Law, (note 8,) alludes to the vagueness with which these crimes are defined by the ancient common-law writers, and discusses the reasons why they have long since become obsolete. The ground of their origin is found in the familiar principle stated by Lord Coke: "Nothing," he says, "in action, entry, or reentry, can be granted over; for so, under color thereof, pretended titles might be granted to great men, whereby right might be trodden down and the weak oppressed." Co. Litt. 114a. It was a part of the law of maintenance that no chose in action, which included all rights not reduced to possession, could be assigned or transferred. This was on the ground, as said by Mr. Chitty,

that "such alienations tended to increase maintenance and litigation, and afforded means to powerful men to purchase rights of action, and thereby enable them to oppress indigent debtors, whose original creditors would not, perhaps, have sued them." Chit. Bills, *6, *7. It is common knowledge, however, that this rule, refusing to sanction or give effect to the assignment of choses in action, was never adopted by courts of equity either in England or in this country, and that courts of law, yielding to the growing exactions of commerce, finally allowed the assignees of such rights to maintain suits in the name of their assignors. 2 Story, Eq. Jur. § 1050. Such assignments are now expressly authorized by the statutes of this state. Code 1886, §§ 1762, 1763, 2594.

The peculiar state of society out of which such a law grew carried it to the most absurd extremes. Men were held indictable for aiding a litigant to find a lawyer; for giving friendly advice to a neighbor as to his legal rights; for lending money to a friend to vindicate his known legal rights; for offering voluntarily to testify in a pending suit; and other like offices of charity and friendship. 3 Amer. & Eng. Cyclop. Law, 71. It is not surprising, therefore, that the law on this subject had gradually undergone a great change, which is recognized universally by jurists, judges, and law-writers everywhere. This change has been called for by the new conditions of modern society, considered in its varied relations, commercial, political, and sociological. In many of its phases it has been, both in America and England, emphatically discarded as "inapplicable to the present condition of society, and obsolete." Sedgwick v. Stanton, 14 N. Y. 289, 296; Master v. Miller, 4 Term R. 320; Thallhimer v. Brinckerhoff, 3 Cow. 623; Richardson v. Rowland, 40 Conn. 565; 2 Whart. Crim. Law, (8th Ed.) § 1854, note.

It is accordingly asserted on high English authority that no one has been punished criminally for the offense of maintenance or champerty within the memory of living man. 3 Steph. Crim. Law, 234. Public opinion in England has advanced so far on this subject that the criminal law commissioners many years ago recommended very earnestly that the offenses of maintenance and champerty be abolished, observing of them that they "are relics of an age when courts of justice were liable to intimidation by the rich and powerful and their dependents." Steph. Dig. Crim. Law, note 8.

There is much reason, it thus seems, for the relaxation of the old doctrines pertaining to this subject, so that they may be adapted to the new order of things in the present highly progressive and commercial age. Necessity and justice have, accordingly, forced the establishment of recognized exceptions to the doctrine of these offenses. Among these may be enumerated the following instances: Relationship by blood or marriage will often now justify parties in giving each other assistance in lawsuits; and the relation of attorney and client; or the extension of charitable aid to the poor and oppressed litigant; and especially is an interference in a lawsuit excusable when it is by one who has, or honestly believes he has, a valuable interest in its prosecution. It is especially with the last-mentioned exception we are concerned in the present case, which, in our judgment, is controlled by it.

The principle is thus generally stated in 3 Amer. & Eng. Cyclop. Law, 76: "It has been seen that the gist of the offense of maintenance is that the interference is officious. Where, therefore, a party either has, or honestly believes he has, an interest, either in the subject-matter of the litigation, or in the question to be determined, he may assist in the prosecution or defense of the suit, either by furnishing counsel or contributing to the expenses, and may, in order to strengthen his position, purchase the interest of another party in addition to his own. The interest may be either small or great, certain or uncertain, vested or contingent; but it is essential that it be distinct from what he may acquire from the party maintained." In Thompson v. Marshall, 36 Ala. 504, this principle was applied to a case where one co-de

fendant, in a suit pending to rescind a conveyance for fraud, purchased the interest of such co-defendant in the property in litigation, and assumed a liability for his vendor's share of the costs and expenses of suit. The contract of purchase was held not to be champertous, because the interference was to protect a valuable interest, and was not, therefore, either an unlawful or officious intermeddling. So, in McCall v. Capehart, 20 Ala. 521, where certain persons, erroneously believing that they had an interest in a piece of land then in litigation, purchased the interest of the defendant, and indemnified him against the cost and damages of suit, the court held the transaction free from the taint of champerty, on the ground that the assistance was rendered by the defendants "under the honest belief that they were interested in the result of the suit, and not for the purpose of fomenting litigation."

The modern and better definitions of "champerty" incorporate this idea fully. Mr. Wharton says: "Maintenance is support given to a litigant in any legal proceeding in which the person giving the assistance has no valuable interest, or in which he assists from any improper motive." 2 Whart. Crim. Law, (8th Ed.) § 1854. In 2 Bouv. Law Dict. (14th Ed.) 90, it is defined to be "a malicious, or, at least, officious, interference in a suit in which the offender has no interest, to assist one of the parties to it against the other with money or advice to prosecute or defend the action, without any authority of law." So Mr. Addison involves in the definition the idea of agreeing to assist in the prosecution of a lawsuit, "in which the party making the agree ment is in no wise interested, and with which he has 'no just or reasonable ground for interference." 1 Add. Cont. § 256. Of course, it is necessarily true that, if the offense in question does not amount to maintenance, there can be no champerty in it, because, as we have said, champerty is but a species of maintenance. 2 Co. Inst. 207.

In Thallhimer v. Brinckerhoff, 3 Cow. 623, a leading and learned case on the subject of champerty, it is said "that any interest whatever in the subject of the suit is sufficient to exempt him who gives aid to the suitor from the charge of illegal maintenance." And referring to such interferences it is said: "Upon all such cases these laws were never intended to operate. They were intended to prevent the interference of strangers having no pretense of right to the subject of the suit, and standing in no relation of duty to the suitor. They were intended to prevent traffic in doubtful claims, and to operate upon buyers of pretended rights, who had no relation to the suitor or the subject, otherwise than as purchasers of the profits of litigation."

In Ware v. Russell, 70 Ala. 174, this court sustained an agreement between attorney and client as free from champerty or maintenance, where the defendant in attachment, in consideration of professional services on the part of the assignee, assigned to his attorney the entire property in litigation, giving him the entire management and control of the suit, and stipulating for his own (the assignor's) active prosecution of it. It was said by BRICKELL, C. J.: "The corrupting element of the contract [of champerty] is its tendency to foment or protract litigation, its dependency for its value upon the termination of suits, and its introduction, to control and manage them, of parties without other right or interest than such as is derived from the contract."

In Call v. Calef, 13 Metc. 362, where two persons owned distinct rights to the exclusive use of a patent in two different places, near each other, it was held that the interest which each had in maintaining the value and profit of his particular right would justify him in aiding the other to prosecute a suit for the infringement of the exclusive right of the latter. So it has been held, and is manifest that any citizen may lawfully contribute to the lawful expenses of any public criminal prosecution, and the act will not subject him to the charge of maintenance. Com. v. Dupuy, Brightly, N. P. 44. See, also, Story, Cont. § 579; 2 Pars. Cont. *765, *766; 2 Story, Eq. Jur. § 1050.