
    McMullen v. Guest.
    The repeal of an act by virtue of which suits have been brought and are pending at the time of the repeal does not affect such suits whore the same act which makes the repeal contains a substantial re-enactment of the provisions under which the suits wore brought.
    Where the plaintiff is a resident of the Scab© he is entitled to the process of the courts to enforce his rights against a non-resident whose person or property he may find subject to that process. lie may, under the act of the Legislature, sue the non-resident as a transient person.” if found temporarily sojourning here, and if not to be so found he may sue and obtain service by publication, whether the defendant have any property in the State or not. This case is distinguishable from the case of Ward u.Lalhrop, (4 Tex. ii.,18U.) (Note 49.)
    
      Quere whether the English law in respect of champerty and maintenance is in force in this State. If it were, the fact that the plaintiff had parted with his title or claim under a champortous contract to a third person, for whose benefit the suit was alleged to be prosecuted, would not defeat a recovery. Nor could champerty be proved upon the trial where it was not pleaded m the answer.
    Where the plaintiff sued for the value of work and labors performed through a series of years, and the defendant pleaded the statute of limitations; JTcfd, That the plaintiff could not recover for more than two years.
    Error from Cass. The defendant in error sued the plaintiff in error, on the 8th day of November, 1847, to recover the sum of one thousand dollars, alleged to be due him for work and labor performed by him for the defendant at his request for the space of seven years, ending on the 1st day of July, 1847. The petition alleged that the plaintiff resided in the county of Cass, in this State, and that the defendant was a resident of the State of Louisiana. The plaintiff’s attorney made affidavit that the defendant is not an inhabitant of this State.
    Tire defendant, having been served with process by publication, appeared and answered by a general demurrer and a denial of indebtedness and the allegation of special matter in his defense; he also pleaded the statute of limitations.
    The cause was tried at the Fall-Term, 1S49. It was in proof that the defendant resided with the plaintiff in the years of 1841, ’42, ’43, ’44, ’45, ’46, and a part of 1847. There was proof of an agreement or understanding between the parties that the plaintiff was to receive by the year for his-Libor and services a specified sum or a part of the crop raised upon the defendant’s farm. And there was evidence respecting the value of the services rendered by the plaintiff, but upon this point the testimony was conflicting. There was proof of services rendered of more or less value during several years, ending at a period in the year 1847 some time previous to the commencement of the suit. The defendant introduced a witness (Wilson) who testified that, the plaintiff told him that •the terms on which he had agreed to bring (his suit were that one Spellings (will; whom lie made the agreement) was to pay the attorney’s fees and all tile costs and expenses of the suit, and the plaintiff was to divide with him equally tlie amoupt recovered. This testimony was rejected by (he court and excluded from the consideration of the juiy, to which ruling the defendant excepted. There was a verdict and judgment for the plaintiff for three hundred and ten dollars; a motion for a new trial overruled.
    
      J. II. Roger?-, for plaintiff in error.
    I. The petition alleges that the defendant below was a resident citizen of the State of Louisiana at the institution of the suit. Títere is no allegation that tiic court had jurisdiction over him or any property which is the subject-matter of controversy.
    The 11 tit section of the act of 1840 (page 300) to regulate proceedings in the District Courts was evidently intended to apply to those cases only in which suit was brought to recover laud or other property within the jurisdiction of the court, or where it was commenced by attachment which was levied upon property within the State when the defendant was not an inhabitant and it was necessary to make him a defendant or party. By giving this construction to the section (and it is a most obvious one) it harmonizes with the 1st section of the same act. Any other would make them conflict, and it is a cardinal rule of construction that-every part of a statute shall receive that interpretation which will make the whole harmonize, if possible; or, in other words, such a construction shall not be given to one clause or section of a statute as will destroy the obvious meaning and import of another, unless its terms will admit of no other construction. But argument on the point is unnecessary. I regard the question as no longer open since the decision of tin's court in the case of Ward v. Latlirop el al., made at the December Term, A. D. 1849.
    II. It was error to reject the testimony of Wilson, which went to show that tlie suit would not have been brought but for the agency and intermeddling of Spellings, and which presents some strong features of champerty or maintenance. (White v. Gray’s Executor, 1 Tex.R., 384.)
    This bargain or contract plainly tends to encourage that species of lawsuits' known to "the law as champerty or maintenance. (See Power v. Knouky, 2 Atk. R., 22-1; Story’s Eq., secs. 297, 298.) The same doctrine, laid down in White v. Gray’s Executors, is also held in Chitty on Contracts, marginal page 677, as to the purchaser contracting to pay costs; and a full discussion of the whole question will be found in 4 Blaekstone, 134, 133, marginal page. (1 Russell, 176; Coke, Litt., 38S.)
    III. This case presents an admirable illustration of the necessity and wisdom of the statute of limitation. They are in such cases essentially statutes of repose. The plaintiff, a destitute relation of the defendant, lives with him a number of years, under contracts deemed by bolh as giving fair equivalents for the services rendered and recovered by either. The presumption, in the absence of proof, would be that the contracts were closed and settled at the end of each year, but from the relations of the parties it was not deemed important to preserve the evidence of each settlement. Years after, when the parties have fallen out, or when one of them has been tampered with by a more designing person behind the scones, a suit is brought setting up a claim for the services for ail these years; and because the defendant cannot prove the day and dates when lie paid them, a jury think themselves authorized to give a verdict for them. In this case, however, the defendant was not so deficient in testimony. He had the acknowledgment of the plaintiff, after the time had elapsed when the services were sa'ub to have been rendered, that the defendant owed him nothing; that he, defendant, had done more for him (plaintiff) than his services were worth, and he wanted no settlement. Beside», the defendant proved the payment of debts for plaintiff, the furnishing him with clothes, and other matters, allowing that this acknowledgment of the plaintiff was true, and made ip good faith before his honesty had been tampered with and his avarice excited by another.
   WHEELER, J.

It is insisted that the court erred, 1st, in not dismissing the case for the want of jurisdiction ; 2d, in excluding the testimony of the witness Wilson; and, 3d, in refusing a new trial.

1. The first objection to tlie judgment here taken cannot he maintained. The 11th section of the act of 1840, (Hart. Dig., p. 243,) in force when'this suit was brought, contemplates tlie bringing of a suit against a non-resident defendant in a case, like the present. And although that section’was subsequently repealed, the 13th section of the act of 1S48 (which contains tlie repealing clause) is a substantive re-enactment of the 11th section of the former act, under which this suit was brought. (Hart. Dig., p. 269.) Tlie statute appears to have been strictly complied with, and the action was rightly maintained.

This ease does not come within the principle of tlie decision of this court in the case of Ward v. Lathrop, decided at the December Term, 1849. In that case neither plaintiff nor defendant was a resident of this State; nor did it appear that there was any property of tlie defendant within its limits. There was neither person nor property subject to the jurisdiction of tlie court. Here it is otherwise. The plaintiff is a resident of the State, and is entitled to the process of the court to protect and enforce his legal rights against a non-resident whose person or property he may And subject to that process. lie may sue the non-resident as a “ transient person,” under tlie provision of the 1st section of tlie act of 1S46, (Hart. Dig., p. 241,) if found temporarily sojourning here; and if not to be so found, the object of the statute under which this suit was brought doubtless was to enable him to sue and obtain service by publication. The non-residence of the defendant constitutes no objection to the jurisdiction, however the judgment might be regarded if sought tobe enforced in a foreign State. (Story on Con. Laws, sees. 539, 540, 548', 549, and notes; 9 Mass. II., 466.)

2. The second ground of error relied on requires a revision of the ruling of the court in excluding the testimony of tlie witness Wilson. Tlie object of this testimony was to show that the bringing of tlie suit liad been induced by a third party, Spellings, under a contract illegal and void for champerty.

That the testimony offered did go to prove such a contract as known to the common law between the plaintiff and Spellings is unquestionable. (4 Bl. Comm., 135; 1 Inst., 368.) But it may well be questioned whether a contract between the plaintiff and the third party, though void for champerty, can constitute a defense to tlie action, as between tlie plaintiff and defendant, in a suit upon a contract or title not connected with the illegal transaction. True, tlie contract between the plaintiff and Spellings was illegal and therefore void, and a court of justice will not lend its aid to enforce it. It is, it has been said, a first principle, not to be touched, that a contract in order to be binding must be legal. (2 Cain’s R., 149.) But does it follow that because the plaintiff lias made an illegal contract, not now sought to be enforced, he shall not therefore be permitted to enforce one which is legal? There is a dicium of an eminent judge to that effect in the case of Hunt v. Hale, reported in 8 Yerger, p. 142. That was a proceeding in chancery, to enjoin a judgment recovered at law. One of the grounds relied on to obtain injunction was that there was champerty in prosecuting tlie suit at law; and Catron, CIi. J., is reported to have said, “If there was champerty in prosecuting the suit at law, application ought to have been made to that court, the fact ascertained, and the suit dismissed.”

If the fact of champerty could thus operate to defeat the suit, it must be, it would seem, upon the ground that the suit was prosecuted for the benefit of the chanipertor. But this reason is not satisfactory, for when the judgment shall have been recovered it does not become legally subject to his control.

In Kentucky, however, it is held that although a conveyance of land in the adverse possession of a stranger to the contract, and not made bonajide, is void under the champerty act, yet there can be no recovery of the land upon tlia^ title of the vendor, where it appears to. the satisfaction of the jury that the action is for the benefit of tlie champertous purchaser; but if the action is prosecuted for the benefit of the vendor, he may recover; and whether it was so brought is a question for the jnry. (7 Da. R., 30; 9 Id., 385; B. Monr. R., 159.) This doctrine is probably tlie consequence of local legislation. A different doctrine is maintained elsewhere.

In Massachusetts it is held that a conveyance by a disseizee is unlawful and void, but the title remains in the grantor; and in an action brought by him to recover tlie possession from the disseizor, the latter cannot plead that the plaintiff, after the conveyance, made such an unlawful contract, and that the action is brought at tlie expense and for the use of the grantee in pursuance of an unlawful agreement between him and the grantor. The champertous conveyance is held to be void by the common law, there being no statute upon the subject in that State; but the title remains in the. grantor, and he may recover upon ft. (5 Pick. B., 3-18.) In England this doctrine is said never to have been questioned. (Id. 53S.) It is a well settled doctrine in New York, (5 Johns. B., 500.,) and probably in most of tlie other States. (4 Kent. Comm., 5th edit., 446-450, and notes.)

In the case of Burnley v. Whiting (5 Pick., 348) tlie defendant pleaded that the suit was brought at the instigation of the grantee in the champertous contract at his expense, and with a view to carry into effect the unlawful bargain. But the court held the plea bad and the defense inadmissible. "‘To establish such a defense ” (it ivas said) “ would be in fact to transfer the title of the land from the defendant to the tenant by way of punishment for the attempt to convey it unlawfully.” “ To say that the person in possession should hold the land against the claim of the owner, because he had committed an offense, would be to impose a punishment not provided by the statute of Henry nor lcnowm to the common law.” (Id., 355, 35G.) The court quote and adopt the language of Chief Justice Parsons, who on a previous occasion said : “The parties may be punished for the offense, and the conveyance is void; but there is not a scintilla of law that a man having a right to recover is barred by the execution of a deed purporting to be a conveyance, but by which his right did not pass unless by way of estoppel as between tlie parties to the deed.”

The reasons upon which this decision is founded are equally applicable to the present case. There is no difference in principle between the cases. Tlie champertous agreement did not transfer from tlie plaintiff to Spellings his right to his demand against the defendant. It could not operate to divest the right of the plaintiff, or to transfer it to the defendant. Spellings could exercise no control over tlie judgment when recovered. He could not enforce his contract with the plaintiff. That contract was by the common law void, and the parties may be liable to punishment for the offense. But it is not easy to perceive upon what principle it can be held that the making of an illegal contract can vitiate a contract which is legal, or that tlie commission of an indictable offense can deprive the party of a right to maintain a civil action upon a valid contract made anterior to the reprobated act and independent of it. Champerty is denounced by the common law as an indictable offense, and those who are guilty of it arc characterized by Blackstone (4 Bl. Comm., 135) as “ pests of civil society that are perpetually endeavoring to disturb tlie repose of their neighbors, and officiously, interfering in other men’s quarrels.” But however it may he reprobated by the law as an odious offense against the peace and harmony of society, it may well he questioned whether it can be interposed to defeat a recovery in a case like the preseut. We incline to the opinion that it cannot be so interposed. The question, however, considered in reference to the authorities, cannot, perhaps, be said to be wholly free from doubt; and as it was intimated at the bar that it will not probably in any event again arise for decision in this case, we may forbear for the present its decision. We have intimated our opinion for tlie benefit of the parties in the ubvent that, it should become a question material to be decided in the future conduct of the cause.

It is deemed proper here to remark further that in considering this question, and for the purposes of this case, we have assumed that the common law in respect to champerty is in full force in this country. But we do not intend to he understood as having adjudged that question. How far tlie rigor of the ancient law respecting the sale of pretended titles may have been relaxed, and how far the ancient policy of the law which denies the assignability of a right of entry, for the reason, as stated by Lord Coke, that “under color thereof pretended titles might he granted to great men, whereby right might be trodden down and the weak oppressed,” may have been founded oil a stale of societ3 which does not exist in this country are questions which may be reserved for future inquiry should such inquiry become necessary.

But whatever may have been the effect of the proposed evidence, if properly interposed as a defense to the suit, to have rendered it admissible it must have been pleaded. There was no plea or averment in the answer setting up that defense, and the evidence was inadmissible for that reason. No principle is better settled in our practice than that to render a defense availing it must be pleaded. A defendant caunot tints surprise his adversary by the introduction of evidence upon the trial to establish a defense of which he has not given notice b3 his pleading. The court did not err in excluding the evidence from the jury. But—

3. There was’error in overruling the motion for a new trial.

In so far as the evidence went to prove any contract, of hiring, it was a hiring by the year. The, plaintiff’s wages became due annually, and consequently his cause of. action for each year’s services accrued at the Close of the year. It is manifest, therefore, that at the commencement of this suit his demand, except for the years ending within two'years next before the bringing of the suit, was barred by the statute of limitations. But the evidence before the jury related to services rendered during several years before that time, and the jury were permitted to entertain and include in their verdict as well that portion of the plaintiff’s demand which was barred by the statute as that which was not within the statutory bar. The verdict, therefore, was against law and ought to have been set aside and a new trial awarded.

The judgment must be reversed and the cause remanded for further proceedings.

Judgment reversed.

Hkmphill, Ch. J.

I concur in the judgment in this case, and in the reasons upon which it is founded, but decline to express an opinion as to whether contracts of the nature and character of the one between Spellings and the plaintiff be void or not. The question is of great importance, and I am unwilling to express auj opinion upon it without full discussion and thorough examination. Many of the suits for lands before the boards of laud commissioners and before the District Courts have been prosecuted and titles secured under agreements containing the like conditions. There was a period at which títere was very little or no money in the country. Lands were comparatively valueless, but formed frequently the only fund for the remuneration of the services of agents or attorneys. These were necessarily, though perhaps reluctantly, aiid as they may have supposed to their own detriment, compelled to rely for payment on a portion of the property in controversy. The titles for an immense poition of the lands of the country were secured in this way, and,could have been procured iu no other. The claimants wore frequently unable and indisposed to prosecute their claims on other conditions. If such titles be disturbed, another element of agitation, another darkening cloud, would arise to trouble and overshadow the landed interests of the country.

And I also decline to express any opinion as to the effect of a conveyance of lands to a third party while the possession is held adversely by another. That the conveyance is mili and has no operation except between the grantor and grantee isa doctrine which prevails iu most of the States, founded generally upon local legislation, but has not been introduced into New Hampshire, Pennsylvania, Illinois, Missouri, or Louisiana, In (i Binney, 421, it is said “that from the equality of the condition of persons in ibis country there was no danger of maintenance from the influence of powerful individuals, and the abundance and cheapness of lands rendered it necessary to admit of itstransfei with almost as much facility as personal property. For these reasons, when deeds and devises of land have been considered in our courts, it has never been made a question whether the grantor or devisor was in or out of possession, and to make it now would disturb wliat has been looked upon as settled.” See 2 Watts, where the doctrine invalidating such transfers is referred to the statute of the 22 II. 8, c. 9. (4 Kent, 447.)

Note 49.—Campbell v. Wilson, post, 379; Tulane v. McKee, 10 T., 335; Ward v. Lathrop, 11 T., 287; Bufcterworth v. Kinsey, 14 T., 495; Mickie v. McGehee, 27 T., 134.

These observations are made for the purpose of inviting discussion wlien the questions are presented for decision, as they probably will be in some future case, and that a full argument may be had.  