And your orator further shows unto your Honors that, relying on the promise and honesty of the defendant, and upon the understand ing and agreement with him, the complainant purchased the said property of the said Fletchers, on the 19th of October, 1848, while the defendant was absent in Cincinnati; and in order to secure the said McMicken in the loan of the said $5,000, the complainant caused the title of the said property to be made out in the name of the defendant, with the express condition that the purchase was made in the name of the defendant for the use and benefit of the complainant, all of which will appear by reference to the act of sale, marked exhibit F; to the letter of the complainant to the defend ant, dated on the 19th of October, 1848, accompanying a copy of the act of sale sent to the defendant, marked exhibit G, and other proofs to be hereafter exhibited. That said defendant accepted the said sale, &c., took the said property, &c., and held the same in trust for the use of complainant, and upon no other condition or understanding, subject only to the repayment of the money advanced for the purchase thereof."

The bill avers that the plaintiff being thus

attorney purchases from his client the whole subject matter of controversy for his own benefit, it is champerty, though he has some interest of his own, Cases above cited, and Arden v. Patterson, 5 Johns. Ch., 44.

So a contract with an attorney that he shall prosecute suits for the recovery of property and receive part of the property recovered for his services, and that no compromise shall be made unless he join in it or to indemnify against costs. Strange v. Brennan, 5 Sim., 346; aff'd 2 Cooper, 1; 10 Jur., 649; 15 L. J. Ch., 389; Hilton v. Woods, 4 L. J. Eq., 432; 36 L. J. Ch., 491; 15 W. R., 1105; 16 L. T. N. S., 736; Key v. Vattier, 1 Ham., 132; Scobey v. Ross, 13 Ind., 117; Masters, in re, 1 H. & W., 348.

The bill charges certain fraudulent pretexts on the part of McMicken for withholding the deed according to his agreement; denies their validity, and affirms that the plaintiff has been forced into a court of chancery in consequence of the repeated refusals of the defendant to deliver up his property and convey the same to him.

The bill prays that the defendant may, by the order and decree of the court, be required to convey the said property to the plaintiff upon the payment, or render to the said defendant the amount of his advances, and for general relief.

A decree pro confesso was entered at the Spring Term of the Circuit Court, 1853, and at the same term of the court in 1854 a decree was rendered requiring the defendant to convey the property specified in the bill to the plaintiff, upon the payment to the said defendant of the debt reported to be due, within six months after the date of the decree.

It is objected in this court that the arrangement between the heirs of Fletcher and his attorney (Perin), by which the latter became the purchaser of their interest in the subject of the litigation he had been conducting in their be

| made, for contingent fees, will be sustained both in law and equity. Stanton v. Haskin, 1 McArthur, 558.

There is nothing illegal, immoral or against public policy in an agreement by an attorney at law to present and prosecute a claim, either at a fixed compensation or for a reasonable percentage upon the amount recovered. Wright v. Tebbitts, 1 Otto, 252; or for a contingent compensation. Stanton v. Embrey, 3 Otto, 548; or to carry on the suit at their own costs and charges and have one half the amount recovered. Mayton v. Raymond, 4 Am. L. Times, N. S., 21; see McPherson v. Cox, 9 Otto, 355. The question of attorney's compensation in New York is determined by statute, viz.: "The compensation of an attorney or counselor for his services, is governed by agreement, express or implied, which is not restrained by law.' Code of Civil Procedure, sec. 66. But in New York an attorney cannot buy demands for the purpose of suing them. Code of Civil Procedure, sec. 73; Penal Code, sec. 136. May buy after commencement of suit. Wetmore v. Hegeman, 88 N. Y., 69. Where he buys primarily for another purpose, and the intent of

An agreement to give plaintiff's attorney part of the recovery is valid, and defendant cannot give it in evidence. Sussdorf v. Schmidt, 55 N. Y., 319; King v. N. Y. C. & H. R. R. R. Co., 72 N. Y., 607.

So, an agreement by an attorney to conduct a suit and give the plaintiff a fixed share of proceeds after paying expenses. has been sustained. Fogerty v. Jordan, 2 Robt. N. Y., 319.

It is also held that an attorney may purchase all or part of the subject matter of litigation, or contract for payment out of the proceeds. Cases before cited, and Bayard v. McLane, 3 Harr., 216; Lytle v. State, 17 Ark., 693; Newkirk v. Cone, 18 Ill., 449; Fetrow v. Merriwether, 53 Ill., 275.

Contingent fees are not to be generally commended. Ex parte Plitts, 2 Wall., Jr., 453.

An agreement between attorney and client, fairly

not violate the statute. Moses v. McDivitt, 88 N. Y., 62. Nor can he advance or agree to advance money needed to carry on the prosecution, as an inducement to placing the claim in his hands. Code of Civil Procedure, sec. 74; Penal Code, sec. 136; Coughlin v. N. Y. C. & H. R. R. R. Co., 71 N. Y., 433; rev'g 8 Hun, 136.

It is provided by U. S. statute, that "nothing herein shall be construed to prohibit attorneys, solicitors and proctors from charging to and receiving from their clients, other than the government, such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective states, or may be agreed upon between the parties." U. S. R. S., sec. 823.

See, also, as to attorney and client, Hoffman v. Vallejo, 45 Cal., 564; Allard v. Lamirande, 29 Wis., 502; Stearns v. Felker, 28 Wis., 594; Bentiwick v. Franklin, 38 Tex., 458.

As to what is champerty, and how it differs from maintenance, see note to Lewis v. Bell, 17 How.,

616.

a defense in the courts of that State, it should have the same effect in the courts of Michigan, under the Act of Congress, May 26, 1790, ch.

11.

Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnel, 3 Wheat., 234; Green v. Sarmiento, 1 Pet. C. C., 75.

The proceedings in Ohio were in rem, and by the laws of that State, devested all prior liens, and gave to the purchaser of the boat a clear

title.

The Supreme Court of Michigan must therefore have decided against the validity of the Act of 1790, for it refused to give the sale the faith and credit it would have received in the courts of Ohio. The record in this case does not show, in express terms, that the validity of such statute was drawn into question; but from the record it does appear, by a clear and necessary intendment, that such must have been the case, and that the decision is as contrary to the Act of 1790. This is sufficient to confer jurisdiction.

Craig v. Missouri, 4 Pet., 411; Smith v. Maryland, 6 Cranch, 286; Harris v. Dennie, 3 Pet., 292; Wilson v. B. C. M. Co., 2 Pet., 245; Croweil v. Randell, 10 Pet., 368.

Mr. C. Cushing, for the defendants in er

ror:

The bill of exceptions is presumed to cover the whole case, and nothing else could have been considered in the Supreme Court of Michigan, or can be considered here. As that presents no question which could have been reviewed under the 25th sec. of the Judiciary Act, it is clear that the case turned exclusively upon the other grounds presented.

Maney v. Porter, 4 How., 55; Mills v. Brown, 16 Pet., 525; Commercial Bank v. Buckingham, 5 How., 317.

Mr. Chief Justice Taney delivered the opinion of the court:

This case comes before the court upon a writ of error to the Supreme Court of the State of Michigan.

The facts in the case. so far as they are material to the decision of this court, are as follows:

The steamboat Globe was built in the State of Michigan, and by the laws of that State the persons who furnish materials for her construction had a lien upon her, and had a right to enforce their claims by a proceeding in rem against the vessel. Before these claims were discharged she was removed to Cleveland, in the State of Ohio, where she received her machinery and was fitted out; and for the debts thus incurred the Ohio creditors, like those in Michigan, had a lien on the vessel, and were authorized to proceed against her by attach ment and seizure.

Afterwards, when the steamboat was in the port of Cleveland, the Ohio creditors obtained process against her, and she was seized, condemned, and sold, according to the laws of that State, to satisfy these liens. A certain E. S. Sterling became the purchaser at this sale, and afterwards sold her to Maxwell, one of the plaintiffs in error.

After these proceedings, the steamboat returned to Michigan, and was there seized by virtue of the prior lien created by the laws of

that State, as above mentioned. The party at whose instance and for whose benefit the proceeding was instituted under the Michigan lien, had filed his claim in the previous proceedings in Ohio, but was permitted by the court to withdraw it without prejudice.

The plaintiffs in error, who were the owners, or had an interest in the steamboat, appeared in the Michigan court to defend her against this claim. And the principal ground of defense appears to have been, that the sale in Ohio was not made subject to the prior liens in Michigan; that it was an absolute and unconditional sale, made by competent judicial authority, and vested the property in the purchaser, free and discharged from all previous liens and incumbrances.

The record contains the pleadings, evidence, and admissions of the parties in relation to these transactions, and the proceedings in the state courts. But it is unnecessary to state them at large, as the above summary is sufficient to show the matter in controversy in the state courts, and how the questions raised in the state courts were brought before them.

At the trial in the Circuit Court of Michigan. the defendants in error, who were plaintiffs in that court, prayed the court to give the following instructions to the jury:

1st. That if the jury should find, from the evidence adduced in this cause, that the steamboat Globe, mentioned in the declaration, has been constructed and built in this State, and was used in navigating the waters thereof, and that the debt, claim, or demand, for which she was attached by the plaintiff, has been contracted in this State by the owners, joint own er, or agent thereof, on account of supplies furnished by said plaintiff for the use of said boat, or on account of work done, or materials furnished by said plaintiffs in or about the build ing, fitting, furnishing, or equipping of said boat in said State; that then said plaintiff acquired and had a lien on said boat for said debt, claim, or demand, under and by virtue of the law of this State.

"2d. That if the jury should be of the opinion, from said evidence, that said claim or demand of said plaintiff constituted a lien on said boat, which had been acquired as aforesaid, and that the contracting parties were then citizens of this State, then that such lien had not been displaced or affected by the legal proceedings resorted to in the court of Ohio, exemplifications of which were introduced in evidence by the defendants; that if any title was acquired under the same, or the laws of Ohio, such title is subordinate to the lien acquired by the plaintiff in this State, by virtue of the laws thereof, that such proceedings do not constitute a valid defense to this action, and that said boat, on coming within the jurisdiction of this court, was subject to be attached for said claim."

And the plaintiffs in error asked for the following instructions on their part:

"1st. That the facts contained in the notice of defendants, and which are admitted as true by the plaintiffs, constitute in law a defense to the plaintiffs' action. 2d. That the sale under the laws of Ohio, if fair and bona fide, constitutes a defense to a purchaser under such laws to a prosecution by a creditor under the laws

of this State, such as the plaintiffs in this case have shown themselves to be. 3d. That defendant Maxwell's title is good against the lien or claim of the plaintiff. Wight, in this cause, even if that of Sterling was not. 4th. That the filing of the plaintiff's claim in the Ohio court precludes him from raising the objection that such court had no jurisdiction of his rights so as to devest his lien by a sale in that State. 5th. That a lien under the statutes of this State, though valid in its inception, cannot be en forced against a purchaser in good faith under a sale under the laws of the State of Ohio, so given in evidence."

Whereupon the court gave the instructions asked for by the defendants in error, and refused those requested by the plaintiffs, who thereupon excepted to these opinions, and the verdict and judgment in that court being against them, they removed the case to the Supreme Court of the State, and assigned there the following errors, for which they prayed that the judgment of the Circuit Court might be reversed:

"1st. The court erred in charging the jury, as requested by the plaintiffs below, and upon the points and to the effect stated more fully in the bill of exceptions filed herein, and to which reference is hereby had.

"2d. The court erred in refusing to charge the jury as requested by the defendants below, upon the points and to the effect stated in the bill of exceptions filed herein, and to which, for fuller particularity, reference is hereby had.

3d. The charge of the court, the verdict of the jury, and the judgment below, are each against and in conflict with the Constitution and laws of the United States, and therefore

erroneous.

4th. By the record aforesaid, it appears that the judgment was given against the plaintiffs in error, whereas, by the law of the laud, the said judgment should have been in favor of the plaintiffs in error, and against the defendants in error."

But the Supreme Court, it appears, concurred in opinion with the Circuit Court and affirmed its judgment; and the plaintiffs in error have now brought the case before this court by writ of error, and have assigned here the following errors:

"1st. By the record aforesaid it appears that judgment was given against the plaintiffs in error; whereas, by the law of the land, and under the evidence appearing in the bill of exceptions, the judgment should have been rendered in favor of the plaintiffs in error.

2d. There was drawn in question in this suit, as appears by the said record, a statute of the United States; and the decision and judg ment of the said Supreme Court of the State of Michigan was against the validity of such

Statute.

3d. The said Supreme Court of the State of Michigan erred in deciding that the said proceedings, judgment and sale had in the State of Ohio, were not a bar to the claim prosecuted in this suit.

4th. The said Supreme Court erred, in that it did not give to the said records of judicial proceedings and sale of the steamboat Globe, had in the State of Ohio, the same faith

and credit as they have by law in the said State of Ohio."

Upon these proceedings, as they appear in the record before us, the first question to be considered is, whether any point appears to have been decided in the Supreme Court of the State, which will authorize this court to affirm or reverse its judgment under the 25th section of the Act of Congress of 1789. The error alleged here is, that it did not give to the records of the judicial proceedings and sale of the steamboat, had in Ohio. the same faith and credit that they have by law in that State. But to bring that question for decision in this court, it is not sufficient to raise the objection here, and to show that it was involved in the controversy in the state court, and might, and ought, to have been considered by it when making its decision. It must appear on the face of the record that it was in fact raised; that the judicial mind of the court was exercised upon it; and their decision against the right claimed under it.

It is true, that in some of the earlier cases, when writs of error to state courts were comparatively new in this court, a broader and more comprehensive rule was sometimes recognized. And in the case of Miller v. Nicholls, 4 Wheat., 311, it was said to be sufficient, to give jurisdiction, that an Act of Congress was applicable to the case. But experience showed that this rule was not a safe one; and that it might sometimes happen, that although in one view of the subject an Act of Congress or a clause of the Constitution might be applicable to a case, yet the state court, upon a different view of the case, might have decided upon principles of state law altogether independent of any provision in the Constitution or laws of the United States, and in nowise in conflict with either. And if this court reversed the judgment, upon the assumption that a right claimed under the Constitution or laws of the United States, and to which the party was entitled, had been denied to him, the reversal would sometimes be for a supposed error which the state court had not committed, and upon a point which the state court had not decided. Other cases might be referred to, in which expressions are used in the opinion of the court that might seem in some measure to sanction the doctrine in Miller v. Nichoils; but the general current of the decisions, from the earliest period of the court, will be found to maintain the rule which we have herein before stated. And as this want of harmony in the decisions and language of the court was calculated to mislead and embarrass counsel in the prosecution of writs of error to state courts, this court, at the January Term of 1836, when the subject was again brought before it, in the case of Crowell v. Randall, 10 Pet., 368, determined to give the subject a careful and deliberate examination, in order to remove any doubt which might have arisen from previous decisions. Accordingly, all of the preceding cases are reviewed and commented on in the opinion delivered by the court in that case, and the doctrine clearly announced, that, in order to give jurisdiction to this court, it must appear by the record that one of the questions stated in the 25th section of the Act of 1789 did arise, and was decided in the state court; and that it was