GOLDTHWAITE, J.
1. We are not advised by the judgment entry, that any judgment was rendered upon demurrer. The fact that a demurrer is found in the transcript, or referred to in memoranda of the parties, will not authorize us to revise a judgment, which does not exist. The inference, from the condition of the record is, that the demurrer, if not informally disposed of, was waived. It is immaterial therefore to inquire, whether the special count is good or bad, as a recovery might be had on the other counts.
2. It is not necessary now to determine whether the suit was properly discontinued against Bowie, the co-defendant, as we are clear no advantage can be claimed by Walker, even if improperly discontinued, after his appearance and de-fence of the suit. It is true, in some cases, this court has considered the discontinuance under such circumstances, as vitiating the judgment subsequently obtained against the other defendants; [Adkins v. Allen, 1 Stew. 180; Givens v. Robbins, 5 Ala. Rep. 676, but in these, the effect of the subsequent appearance, without objection, seems not to have been considered. The rule recognized by all the authorities is, that the advantage of the irregularity must be claimed at the earliest period, [6 Com. Dig. W. 6, 274,] and any subsequent proceedings by the party will be considered as a waiver. [Hair v. Moody, 9 Ala. Rep. 399.]
3. We are unable to see on what grounds this agreement can be assailed as champertous, as it seems to be a provision for services rendered in the particular suit out of which the payment is to be subsequently made. There is no pretence to say this is a bargain to have a portion of the sum of money to be afterwards recovered. But it may perhaps be doubted, whether even an agreement to receive compensation out of money or property actually belonging to the suitor, can be considered champerty at the present day.
4. We entirely agree with the circuit court in the construction put by it on this agreement. It is of that class of cases which is subject to explanation, inasmuch as it requires the aid of extrinsic proof to ascertain what facts existed when *220the agreement was made, and without the aid of these facts it is impossible to say,‘whether the services were to be, or had been rendered. It is entirely evident, if an agreement of this sort is made with respect to a suit just commenced, the construction would be, that the promisees should prosecute it to some final result, but when made with regard to a suit just determined, we think the only proper construction is, that the promise and agreement refer exclusively to services already rendered. In this view, it is the promise to pay out of the particular fund created by the suit, and it would be manifestly unjust to permit the parties to defeat the right to compensation by a release, or compromise. The promise is to pay out of the monies to be collected in the case, yet we cannot suppose the claim could be shut out, because the money was paid without the coercion of process. We think it was properly left to the jury to determine whether the fund received was the same as that out of which the payment was to be made. -
The case of Higginson v. Gray, 8 Mass. 385, which is supposed to bear so strong an analogy to this, does not, in our judgment, materially bear on the questions involved. There one underwriter agreed to be bound by the final decison made in another suit, in which the party receiving the stipulation was the plaintiff. The suit was successfully prosecuted, but was compromised pending a commission of review, which is equivalent to an appeal from one jury to another. The decision was, that this compromise did not bind the other underwriter. And the reason given, and entirely evident, is, this was not the determination in contemplation of the parties. In the case before us, the intention of the parties, to be collected from the agreement is, that the plaintiffs shall be paid whenever the promisors receive the fund, or property covered by the suit in which the services were rendered.
5. What we have already said, will enable us to decide the point upon the charge refused somewhat more briefly. The agreement of the parties being rendered definite and certain by ascertaining that professional services in said cause were services already rendered, it is entirely clear the parties contemplated nothing further, as the condition on which the money was to be paid, and in this view the refusal of the *221plaintiffs to attend the case in the supreme court, could not affect their right to recover the entire sum stipulated.
Upon the whole, we are satisfied there is no error available to the defendant.
Judgment affirmed.