We may safely say that the whole doctrine of maintenance has been modified in recent times so as to confine it to strangers who, having no valuable interest in a suit, pragmatically interfere in it for the improper purpose of stirring up litigation and strife, and champerty, which is a species of maintenance attended with a bargain for a part or the whole of the thing in dispute, does not exist in the absence of this characteristic of maintenance. If the pecuniary interest of a person, even though he own no part of the immediate subject-matter of the suit, be so connected with it collaterally in any way as to be diminished or increased in value by the result of such suit, we can perceive no principle of public policy that ought to forbid such person from taking proper care that such interest shall be properly protected in the courts. The forfeiture of a charter of a railroad, for example, on the line of which the owner of a factory or rolling-mill may have his plant, might result in his financial ruin. Could it be said, in the light of modern views on this subject, that an agreement to aid in preventing the forfeiture would be champertous, and as such criminal, because the mill-owner held no stock in the railroad company, nor was otherwise immediately interested in the corporate charter or property? Interference in lawsuits, it has been said, to savor of maintenance, must have some "tendency to pervert the course of justice," (Stanley v. Jones, 7 Bing. 369;) or else, as said by Blackstone, “to pervert the remedial process of the law into an engine of oppression," (4 Bl. Comm. 135.) These elements of unlawfulness are entirely wanting in the supposed case.

Mr. Story asserts that one "may purchase by assignment the whole interest of another in a contract or security or other property which is in litigation, provided there be nothing in the contract which savors of maintenance; that is, provided he does not undertake to pay any costs, or make any advances beyond the mere support of the exclusive interest which he has so acquired." And he puts his conclusion upon the ground that a court of equity would without special contract compel the assignor to permit his name to be used in the suit on the assignee's giving him indemnity for such costs. "Such indemnity and such proceedings, under such circumstances," he adds, "are not deemed maintenance." 2 Story, Eq. Jur. § 1050. This seems to be the more correct and logical view, and better comports with the necessities of modern commerce, except as to transactions between client and attorney, which, by reason of their peculiar relation, ought perhaps to stand on a different basis from other contracts savoring of a champertous character, (Ware v. Russell, 70 Ala. 174; Elliott v. McClelland, 17 Ala. 206;) although by the great weight of modern authority contingent fees of a legitimate character, charged for professional services, dependent on the amount of recovery, are not deemed within the rules against champerty and maintenance, (Thallhimer v. Brinckerhoff, 3 Cow. 623, 15 Amer. Dec. 321, note, and cases cited; Stanton v. Embrey, 93 U. S. 548; Blaisdell v. Ahern, 144 Mass. 393, 11 N. E. Rep. 681; Walker v. Cuthbert, 10 Ala. 213, 219.)

But we prefer to place our decision in this case upon the broad ground that the interest possessed by the defendant Jones in the pending suit, involving the fate of the New Orleans & Selma Railroad, was sufficient to rescue this transaction from the element of officious intermeddling or pragmatical interference on his part. He and his associates owned another railroad, called the Selma & Greensboro Railroad, which was in operation between Alckron and Marion Junction. The bed of the road extended from the latter point to Elizabeth station, a po nt on the New Orleans & Selma road, and on this portion of the track iron had formerly been laid, but was removed by the Confederate government during the late war. The owners of the Selma & Greensboro road had no access to Selma except over the track of the Alabama Central Railroad, and at a very heavy expense, by way of rental compensation. To avoid this expense, and thus appreciate the value and increase the profits of their road, they formed the plan of leasing or buying the New Or

leans & Selma road, so as to connect with it at Elizabeth station, and have an open route of their own to Selma. Negotiations were opened with the trustee of the litigant bondholders, and the bondholders themselves, all of whom except Gilman Son & Co., the plaintiffs in this suit, gave their consent to have such lease, to be legalized by approval of the chancery court in which the suit was pending. These particular bonds were purchased, and the agreement of August 16, 1879, entered into, in order to consummate this enterprise. As stated by the record, the purpose of Jones was to enable him and his associates "to obtain the use of the New Orleans & Selma Railroad to run their cars over from Elizabeth station to Selina; and, soon after such purchase, the proposed lease was made with the approval of the court, and the Selma & Greensboro road was put in order and ironed afresh to Elizabeth station, and used by it to run their cars to the latter point, and thence on the said New Orleans & Selma Railroad into Selma." It is argued by counsel, with much reason, that the interest which the purchasers had in the New Orleans & Selma road-the one in litigation-was emphasized by the existing right of the Selma & Greensboro road "to intersect, connect with, or cross" the former road at any point, and the duty of each road to receive and transport the cars of the other without delay or discrimination, as guarantied by law. Const. 1875, art. 14, § 21; Railroad Co. v. Railroad Co., 84 Ala. 570, 3 South. Rep. 286.

We hold that these facts relieved the contract in question of all taint of champerty, irrespective of other considerations, which we do not now propose to discuss. There are other grounds which, in our opinion, would justify the conclusion reached by the city court adverse to the plaintiffs, but we need not consider them. The action of the court in sustaining the demurrer to the second count of the complaint becomes immaterial in view of the fact that the plaintiff, in the trial of the cause, had the full benefit of the issues raised under that count under the first count.

On the remaining point we entertain no doubt. This involves the right of the plaintiffs to recover the further sum of $14,300, additional to the cash installment of $6,000, already paid. This sum was made payable by the terms of the contract only contingently, "whenever it is finally decided in said suit or otherwise that said bonds are a superior lien to the other bonds of said railroad and immigration company of the same issue," and to what was known as the "Robertson Judgment," which was the basis of said chancery suit. "Superior" means higher in dignity, quality, or excellence. Worcest. Dict. Here it manifestly means "prior;" "superior lien" meaning "prior lien." This is made clearer, if possible, by a subsequent provision in the contract itself that, “in case such priority of lien shall not be finally established,” then the $6,000 already paid shall be deemed full payment, without any further payment, except settlement of the legal expenses assumed by Jones. This, moreover, was the main question in controversy in the case to which the agreement had reference, the proceedings in which are made a part of the present record. Morton v. Railway Co., 79 Ala. 590. The bonds of Gilman Son & Co. were not decided to be a superior lien to all other bonds of the same issue. The record shows that an equal priority was accorded by the decree of this court to 47 other bonds held by Seligman & Co., as collateral security, for which they were allowed to prove on terms of perfect equality with Gilman Son & Co., as bona fide holders without notice of any infirmity of title in them. This fact is fatal to the contention of appellants on this particular point.

We discover no error in the judgment of the city court, either in sustaining the demurrer of appellees to the second count of the complaint, or in the charge given the jury, to find for the defendants if they believed the evidence. Affirmed.

MCBRYDE et al. v. SAYRE et al.

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

EASEMENTS-OBSTRUCTION OF-EQUITABle Relief.

Where by a change in the uses of a dominant tenement the enjoyment of an easement of passage to it has become exceedingly oppressive to the owner of the servient estate, and a right of way from necessity does not exist, if the owner of the servient estate obstruct the easement, equity will not interfere, but will leave complainants to their remedy at law.

Appeal from city court of Montgomery; T. M. ARRINGTON, Judge.

Bill for injunction, filed by Wade A. McBryde and others against C. L. Sayre and others. Decree for defendants, and complainants appeal.

Brickell, Semple & Gunter, for appellants. Tompkins, London & Troy and S. F. Rice, for appellees.

STONE, C. J. In 1872, Mrs. C. S. McBryde, wife of W. A. McBryde, with her husband's consent and co-operation, exchanged with C. L. Sayre and P. D. Sayre lot and store numbered 21 on Dexter avenue, then Market street, for lot 25, same street, each in the city of Montgomery, Ala. The latter paid to the former, in the exchange, an agreed difference in values. The two stores thus exchanged were part of a block of four stores, three stories high, numbered respectively 21, 23, 25, and 27, the numbers rising in successive order from west to east. Store 23 belonged to Mary Sayre, now Mrs. Randolph, and store 27 belonged to W. D. Sayre. These owners are brothers and sisters, and the several properties came to them by succession from their father or mother,—the record does not inform us which. Before the devolution and division, in 1872, the entire block of buildings belonged to Mrs. Sayre, the mother, or to the estate of P. D. Sayre, Sr., the deceased father. At the time of the division of the property and the accrual of the several rights of the children, the approach to the second stories of the stores was by flights of steps, having their entrance on the street,-one between 25 and 27, and the other between 21 and 23. The third story over 25 and 27 was one large hall, 90 by 48 feet, and known as "Concert Hall." To this floor there was, at that time, no access from the second floor of either 25 or 27, although there had once been a flight of stairs extending to it from the second floor, and in communication with the entrance from the street, between those two numbers. The entrance to this large hall, at the time of the division, was by the steps going up between 21 and 23, up to the second floor above them; thence by a second flight of stairs up to their third floor; thence across 23 on its third floor, and entering Concert Hall from the west. This had been the route of access for 15 years or more. It will be observed that this line of access, until it reached the third floor, was over the common dividing line between 21 and 23, and thence entirely across 23 until it reached Concert Hall. One of the written terms of exchange between Mrs. McBryde and her brothers was in the following language: "And the said Philemon and Calvin also give and grant to W. D. Sayre and the said Caroline McBryde, their heirs and assigns, a right of way as now provided and used from the steeet to the hall over the store of the said William and Caroline." C. L. Sayre became the sole owner of store 21 long before the alleged grievances were committed which gave rise to the present suit.

We feel justified in stating as the result of the whole testimony that from the time said mode of access to Concert Hall was established until 1886 the hall was kept to be let, and was let for public entertainments, such as concerts, dances, church bazars, small shows, and the like, with occasional public speakings. It was for some time used for giving dancing lessons, and for a time some use was made of it for a theater. This last use had ceased more

than 10 years before 1872. During the entire time its use had been occasional, and it became less and less used. There was not much use of it from 1872 till 1886. In 1886 the hall and its uses were changed. It was cut up into four rooms, two large and two small ones, and these were let to societies, six or eight in number, composed in part of secret societies-trades unions-of mixed membership. The gross membership is testified to have been from 500 to 1,000, and holding meetings from 4 to 6 nights in the week; and frequently continuing there until a late hour in the night. Claiming that this changed use of the hall was a departure from the original use, and an abuse of the easement, alike in the number and character of the visitors, and in the frequency of their visits, greatly impairing the rental and real value of their property, and doing them great damage, the said C. L. Sayre, acting for himself and Mrs. Randolph, closed up the pass-way across 23, and thus cut off all access to Concert Hall by that route. The present bill is filed to have said pass-way opened, and to re-establish and preserve the said easement over the property of C. L. Sayre and Mrs. Randolph. This result is sought to be accomplished by injunction.

Complainants base their right to relief-First, against C. L. Sayre, on the stipulation copied above from the written agreement of exchange; second, against each, on the ground that the property came to them from a common source, with its status and mode of access fixed upon it, and that the present owners received it and now hold it stamped with the same rights, uses, incumbrances, and disabilities that had been impressed upon it by the former owner. They rely on the following authorities in support of this contention: Washb. Easem. *48 et seq., *523 et seq.; Insurance Co. v. Patterson, 2 N. E. Rep. 188; Galloway v. Bonesteel, 26 N. W. Rep. 262; Brakely v. Sharp, 10 N. J. Eq. 206; Bakeman v. Talbot, 88 Amer. Dec. 279, note. The third ground on which they claim a recovery is that they have had and enjoyed the open, continued, uninterrupted right of way, without a word of objection, for 14 years, and that this gives them a right by adverse or independent user. Gayetty v. Bethune, 14 Mass. 49; Sims v. Davis, 34 Amer. Dec. 581; 2 Wait, Act. & Def. 693.

The main answer relied on in bar of these several claims is the changed use to which defendants claim the easement has been perverted. Their contention is that the words "right of way as now provided and used" limit the use, both in quality aud quantity, to that which then obtained. Richardson v. Pond, 15 Gray, 387; 2 Wait, Act. & Def. 736; Washb. Easem. *538 et seq.; Allan v. Gomme, 11 Adol. & E. 759; Parks v. Bishop, 120 Mass. 340; Onthank v. Railroad Co., 71 N. Y. 194. We consider it unnecessary to decide these questions.

The relief sought in this case is by injunction, and it partakes largely of the nature of a bill for specific performance. Neither of these modes of relief is of absolute, unbending right. In granting or withholding the former the court weighs the conveniences and inconveniences in the first instance, and when very great injury will result to an unoffending party by the stern fiat "Thou shalt," or "Thou shalt not," often leaves parties to their remedies at law. Chambers v. Iron Co., 67 Ala. 353; Davis v. Sowell, 77 Ala. 262; Railway Co. v. Railway Co., 1 Sim. (N. S.) 410; Improvement Commission v. Railway Co., 22 N. J. Eq. 94; 3 Pom. Eq. Jur. § 1338; Washb. Easem. *577, top p. (4th Ed.) 749; Wood v. Sutcliffe, 2 Sim. (N. S.) 163. So of specific performance. It is not demandable of right. The chancery court, on those high principles of justice and morality which are its boast, will always stay its hand when equal and exact justice cannot be done. "The court will not intervene, unless the contract is fair, just, reasonable, and equal in all its terms and parts, is founded upon an adequate consideration, and its specific execution is free from hardship and oppression." Irwin v. Bailey, 72 Ala. 467, 471; Moon v. Crowder, Id. 79; Derrick v. Monette, 73 Ala. 75.

"An

agreement may be valid at law, and there may not be sufficient grounds for its cancellation in equity; and yet, upon a fair and just consideration of the attendant and collateral circumstances, and sometimes of subsequent events, the court will abstain from its enforcement." Byars v. Stubbs, 85 Ala. 256, 4 South. Rep. 755; Cowan v. Sapp, 81 Ala. 525. "The contract and the situation of the parties must be such that the remedy of specific performance will not be harsh or oppressive." 3 Pom. Eq. Jur. § 1405; College v. Thacher, 87 N. Y. 311.

It is very clear from the testimony that the pass-way in dispute was in its uses very much changed in 1886 from what it had been in 1872. The change consisted in a great increase of persons entering and departing, and to some extent of persons much more liable to annoy or offend. From an occasional use, it grew to be an almost every-day and every-night resort. The number of persons using the pass-way was very much augmented, while the change in the character of the visitors, the probability of their observance of the proprieties and refinements of social life, was, to put it mildly, rendered less assuring. It could not fail to render the rooms on the second floors of 21 and 23 less quiet, less private, less secure from annoyance and prying curiosity, and less desirable as tenement or sleeping apartments. And as a consequence, the rental value of these rooms would, of necessity, be much impaired. Closing this means of ingress and egress does not necessarily cut off access to Concert Hall. The stairway from the second floor of number 27, leading up to it, and once in use, can be re-established at a relatively small outlay. The damage to numbers 25 and 27 by this change will place the burden of the servitude on the owners of the property who are benefited by the pass-way, and will be greatly less than is imposed on 21 and 23 under the present arrangement. There is therefore no occasion for considering the doctrine of a right of way from necessity. Nichols v. Luce, 24 Pick. 102; McDonald v. Lindall, 3 Rawle, 492. It is not our intention to decide whether the defendants were or were not justified in closing the pass-way. What we do decide is, that its use had become oppressive to them, and chancery will not aid the complainants in its re-establishment. It leaves them to such redress as they can obtain in a court of law. Affirmed.

HOLT v. STATE.

(Supreme Court of Alabama. April 15, 1889.)

RECEIVING STOLEN GOODS-INDICTMENT.

In a prosecution under Code Ala. § 3794, providing for the punishment of any person who buys, receives, or conceals any personal property, knowing it to have been stolen, and not having the intent to restore it to the owner, an indictment is insufficient which fails to allege the "intent not to restore the property," though it is alleged that the defendant "feloniously" bought, etc., property, knowing it to have been stolen.

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Clarke & Webb and H. T. & G. L. Smith, for appellant. W. L. Martin, Atty. Gen., for the State.

CLOPTON, J. The general rule in criminal pleading requires that every fact and circumstance which enters into and constitutes an essential ingredient of the offense shall be set forth in the indictment; otherwise no offense is charged. If the indictment is framed under a statute which defines the offense created, and prescribes its constituents, it must allege in the words of the statute, or other words equivalent in meaning, all the statutory elements which are essentially descriptive of the offense. Davis v. State, 68 Ala. 58; McCord v. State, 79 Ala. 269. The appellant was indicted and con