shall be made to appear to the court, in the course of the proceedings in bankruptcy, that the bankrupt, his application being voluntary has, subsequent to the 1st day of January last (or at any other time, in contemplation of the passage of a bankrupt law) by assignment or otherwise, given or secured any preference, etc., he shall not receive a discharge, etc.," is to be punctuated as above, and then it will prevent a discharge where the bankrupt made a preferential assignment for creditors subsequent to the 1st day of January last. Re Irwine (1842) 1 Clark (Pa.) 82. A preferential assignment will prevent a discharge in bankruptcy. Re Seeley (1879) 19 Nat. Bankr. Reg. 1. The qualification in the act of Congress July 26, 1876, 19 Stat. at L. 102, does not authorize a discharge where preferences in trust for certain creditors are made prior to the bankrupt proceedings, as an assignment in trust for some creditors is "not such an assignment as by that act is not to prevent a discharge in involuntary proceedings, since it is not an assignment of all the debtor's property nor for the benefit of all their creditors ratably." Diehl (1883) 15 Fed. Rep. 234. Re The intent to have the debtor's estate wound up and distributed under a general assignment by an assignee named by the debtor constitutes an intent to prevent the property from coming to the assignee in bankruptcy, and of being distributed under the bankrupt law of 1867, and a discharge will be refused. Re Kraft (1880) 4 Fed. Rep. 523. In this case it was said that the act of July 26, 1867, providing that a general assignment made in good faith and without preferences, and valid according to local law, shall not prevent a discharge in involuntary cases, shows that a general assignment should have the effect of preventing a discharge in a case of voluntary bankruptcy. A general assignment made by the bankrupt in trust for creditors, not fraudulent, without preference, although made more than six months before the bankrupt filed his petition to be adjudged a bankrupt, will prevent a discharge. Re Kasson (1878) 18 Nat. Bankr. Reg. 379. this case it was said that the deed is conclusive evidence of the intent of the assignor to prevent the property transferred being distributed under the bankrupt act. In And a discharge in bankruptcy will be refused where the debtor had ten months previously made an assignment of all his property for the benefit of his creditors without preference, the effect of such an assignment being to hinder and delay his creditors. Re Goldschmidt (1869) 3 Ben. 379, 3 Nat. Bankr. Reg. 165. In this case the deed of assignment was said to be an act of bankruptcy, under the bankrupt act, 39, and must have been executed "in contemplation of becoming bankrupt" under act of 1867, 29, although the debtor testified that the assignment was made in good faith and not in contemplation of becoming bankrupt. This case was disapproved in Re Pierce (1869) 3 Nat. Bankr. Reg. 258. Into the hands of the assignee and being dis tributed under the act. A general assignment by a partnership of all their property for the benefit of creditors is an act of bankruptcy, and such assignment is held to have been made for the purpose of preventing the property from coming into the hands of an assignee in bankruptcy, and therefore prevents a discharge in bankruptcy. Re Croft Bros. (1878) 8 Biss. 188. In this case the assignment was made February 12, 1876, and a petition of voluntary bankruptcy filed April 11, and shortly after the assignment the assignee turned over to one of the members the fixtures and tools in trade and $100 worth of stock. The court held that it was evident that the partners expected that these assets were to be withdrawn from the assignee and to go into the control of said partner. But an assignment without preference in trust for all creditors, made February, 1841. did not affect the right of a bankrupt to a discharge under the act of 1842. Ex parte Quackenboss (1842) 1 N. Y. Legal Obs. 146. And an assignment preferring creditors, made October 23, 1841, did not prevent a discharge in bankruptcy on a petition filed March 19, 1842, under bankrupt act 1841, which took effect February 1, 1842. Re Chadwick (1844) 5 Law Rep. 457. In Swan v. Littlefield (1849) 4 Cush. 574, it was said that Re Chadwick (1842) 5 Law Rep. 457, held that an assignment made by debtors subsequent to the passage of the bankrupt act but before it was to go into operation, of all their property in trust for certain preferred creditors, would not prevent a discharge under the act on their voluntary petition; but a contrary construction was given to this clause by Judge Story in Hutchins v. Taylor (1842) 5 Law Rep. 289, who said: "The act became a law by the very terms of the Constitution of the United States, as soon as it was approved by the President, although its operation was suspended until the 1st day of February, 1842." A condition annexed to a deed of assignment made in 1836, that the accepting creditors shall release the assignor, will not prevent a discharge in bankruptcy. Re Holmes (1843) 1 N. Y. Legal Obs. 211. In this case it was said that the condition is nothing more than the bankrupt law would require, and is not a preference condemned by the bankrupt law. A creditor who consents to an assignment for creditors is estopped from setting up such assignment as a ground for resisting his discharge in bankruptcy. Re Schuyler (1869) 3 Ben. 200, 2 Nat. Bankr. Reg. 549. An assignment of all the estate of a bankrupt giving a preference to fictitious debts in 1839, would not bar a discharge under the United States bankrupt act of 1841. Re Delavan (1842) 5 Law Rep. 370. The court said that "the debt must be falsely admitted in proceedings under this act, to affect the bankrupt's petition for a certificate," and further said that any collusive arrangement under the deed was not made in contemplation of the passage of the bankrupt act. A deed of assignment in 1837 did not affect the discharge of a bankrupt under the act of 1841. Re Macfarlan (1842) Fed. Cas. No 8,187. A bankrupt is not entitled to his discharge where he made a general assignment for creditors without preference four days prior to filing his petition in bankruptcy, notwithstanding his denial that he intended when he made his assignment, to file a petition in bankruptcy. Re In Re Pierce (1869) 3 Nat. Bankr. Reg. 258, Brodhead (1868) 3 Ben. 106, 2 Nat. Bankr. Reg. it was held that the execution of a general as 278. In this case the assignment was held to contravene the bankrupt act of 1867, § 29, forbidding a discharge to a bankrupt who has made an assignment of his property for the purpose of preventing his property from coming signment for the benefit of creditors without any preference, sixteen days before filing the original petition in bankruptcy, did not preclude a discharge in bankruptcy, under bankrupt act of 1867, § 32, providing that no discharge should be granted if the bankrupt has, in contemplation of becoming bankrupt, made | 379, 3 Nat. Bankr. Reg. 167, which refused a any pledge, payment, transfer, assignment, or discharge where the assignment had been made conveyance of any part of his property for the six months prior to the commencement of propurpose of preferring any creditor or for the ceedings in bankruptcy, was disapproved, saypurpose of preventing the property from coming ing: "The decision is, however, contrary to the views upon which I have acted in many former into the hands of the assignee or of being discases, and views which I still entertain." tributed under this act. I. T. In this case Re Goldschmidt (1869) 3 Ben. ARKANSAS SUPREME COURT. N. L. DAVIS, Appt., บ. T. E. WEBBER. (........Ark.........) 1. An agreement 2. 3. 4. 5. between attorney a and client about to begin suit upon sheriff's bond for his failure to pay over money as directed by a judgment that the attorney shall have the statutory penalty for the default as his compensation after the client receives his claim in full is not void for champerty, and will not be set aside merely because it did not bring the client the anticipated results. Attorney and client sustain to each other the severe relation of trustee and cestui que trust, and their dealings with each other are subject to the same intendments and imputations as obtain between other trustees and their beneficiaries. Weeks, Attorneys at Law, § 268. Equity regards the relation of attorney and client much in the same light as that of guardian and ward, and will relieve a client from hard bargains or from any undue advantage secured over him by his attorney. 3 Am. & Eng. Enc. Law, 2d ed. p. 333. The burden of establishing the perfect fairness, adequacy, and equity of the conA clause in a contract between at- tract is thrown upon the attorney, upon the torney and client for compensation general rule that he who bargains in a matfor conducting litigation, that the client shall ter of advantage with a person placing a not settle the controversy without the attorney's consent, is void because against pub-confidence in him is bound to show that a lic policy. When a contract is against public policy but neither malum prohibitum nor malum in se courts will allow compensation for services rendered under it upon the rule of quantum meruit. One thousand dollars is adequate compensation for the services of an at reasonable use has been made of that confidence. Story, Eq. Jur. §§ 310, 311; Arden v. Patterson, 5 Johns. Ch. 48; Dunn v. Dunn, 42 N. J. Eq. 431; North Chicago Street R. Co. v. Ackley, 171 Ill. 100, 44 L. R. A. 177. The provision in the contract preventing from settling the controversy appellant torney in enforcing the liability of a sheriff's without the consent of appellee is void. bond for his failure to pay $7,114.50 as directed by a judgment where the judgment for principal and penalty is $10,000 and property is turned over to his client in compromise valued at $8,850. The value of services rendered in one suit cannot be included in a judgment establishing the lien of an attorney for his fees on property received by his client in compromise of a judgment in a different suit. (Bunn, Ch. J., dissents.) (February 11, 1899.) footnote thereto. V. Greenhood, Pub. Pol. 774; Boardman Thompson, 25 Iowa, 487; Ellwood v. Wilson, 21 Iowa, 523; Lewis v. Lewis, 15 Ohio, 715. The court, in considering what is reasonable compensation, may take into consideration all the circumstances of the case, and is not bound by the opinion of witnesses summoned as experts, but their opinions, while merely advisory, should be considered in connection with the other evidence in the case. Cosgrove v. Leonard, 134 Mo. 419; Weeks, Attorneys at Law, 697. If the court should hold that the contract on its face is valid, the purpose for which it was entered into having failed, it cannot be enforced and plaintiff must recover on quan tum meruit. Hargis v. Louisville Gas Co. 15 Ky. L. Rep. 369; Moore v. Robinson, 92 Ill. 491; Weeks, Attorneys at Law, 2d ed. 669. When compensation of an attorney is to be paid to him contingently on the successful prosecution of the suit, the measure of damages is not the contingent fee agreed upon, but a reasonable compensation for the services actually rendered. 3 Am. & Eng. Enc. Law, 2d ed. p. 427; Badger v. Mayer, 8 Misc. 533; Western U. Teleg. Co. v. Semmes, 73 Md. 9; Polsley v. Anderson, 7 W. Va. 202, 23 Am. Rep. 613. When the recovery is doubtful, in case of compromise, the attorney is not entitled to recover on the contract, but is entitled to be paid the reasonable value of the services rendered up to the time of compromise. them, the same is not to be accepted unless agreed to by both T. E. Webber and N. L.. Davis; and in such proposition, so mutually agreed to, such allowance shall be made for T. E. Webber's attorney's fees as may be agreed upon by said Webber and said N. L. Davis, or else said proposition shall be re Carey v. Gnant, 59 Barb. 574; Wright v. Wright, 9 Jones & S. 432; Merchants' Nat. Bank v. Eustis, 8 Tex. Civ. App. 350; West-jected. Witness our hands this 30th day of ern U. Teleg. Co. v. Semmes, 73 Md. 9. In construing the contract sued on, it will be necessary to consider the circumstances surrounding the parties at the time it was executed in order that the purposes of the contract may be understood. Hargis v. Louisville Gas Co. 15 Ky. L. Rep. 369; Isham v. Parker, 3 Wash. 755; Merriam v. United States, 107 U. S. 442, 27 L. ed. 533; Reed v. Merchants' Mut. Ins. Co. 95 U. S. 23, 24 L. ed. 348; Maryland v. Baltimore & O. R. Co. 22 Wall. 111, 22 L. ed. 714. The plaintiff, by his conduct and express approval, is estopped from denying that the settlement was made without his assent. Clearly no right of his had been impaired by Davis's agreement, the consideration not having been paid. Marchbanks v. Banks, 44 Ark. 48. Messrs. S. R. Cockrill and Ashley Cockrill for appellee. Wood, J., delivered the opinion of the court: This is a suit by Webber against Davis to recover the sum of $2,885.50 for services, as an attorney at law, under a certain contract, and to declare and enforce a lien for same upon certain property. The contract is as follows: Whereas, by the judgment of the Miller county circuit court in the case of Mansur & Tebbetts Implement Co. and Hargadine, MeKittrick Dry-Goods Co. v. Robt. Ellis, in which N. L. Davis was interpleader, the proceeds of the sale of the stock of goods bought from said Ellis by said Davis was adjudged to be the property of N. L. Davis, and ordered to be immediately paid over to him by A. S. Blythe, sheriff, and a similar order was is sued by the Hempstead circuit court on the other attachments against Ellis, taken to that county on change of venue; and demand having been made on said sheriff, and he failing to pay the same, it becomes necessary to proceed against him on his official bond; and the said Davis having employed the said T. E. Webber for that purpose: Now, therefore, it is agreed and understood, by and between the said T. E. Webber and the said N. L. Davis, that T. E. Webber is to have, as fees for his services as attorney therein, the 10 per cent per month affixed by the statute as penalty in such default, and that N. L. Davis is to make no settlement with said sheriff, or said bondsmen, or either of them, without the assent of the said T. E. Webber. In the event a proposition of settlement or compromise is submitted, either by the said sheriff and his bondsmen, or by the said T. E. Webber and N. L. Davis, or either of April, 1894, to this agreement, which is separate and distinct from, and in no wise affects or impairs, any agreement heretofore entered into as attorney's fees on the interpleas filed for N. L. Davis in said cause. [Signed] N. L. Davis. T. E. Webber. Ac This amount which the sheriff was ordered to pay Davis was $7,114.50. The sheriff failing to pay said amount upon the demand of Davis, Webber was employed, as indicated supra, to proceed against the sheriff and his bondsmen to collect the money. cordingly, Webber, as attorney for Davis, instituted proceedings against the sheriff and his sureties, by motion for summary judgment, and on September 14, 1894, obtained judgment against them for $7,034.50, the amount sued for, less taxes which the sheriff had paid. The judgment was also for interest at the rate of 6 per cent per annum, and 10 per cent per month penalty, on the above amount, from April 23, 1894, until paid. It was provided in the judgment that the amount of principal, interest, and penalty should not exceed $10,000, the amount of the sheriff's bond. The principal, interest, and penalty would have exceeded $10,000 at the time the judgment was rendered. So the judgment obtained by Davis against the sheriff and his bondsmen was for $10,000, and the amount due Webber of said judgment, under the contract with Davis, was something over $2,800. Webber fixed his lien upon said judgment March 21, 1895. In April thereafter Davis accepted of the sheriff and his sureties certain notes and real estate in satisfaction of the judgment against them. This was done without the payment of Webber's fee, and, as he claims, without his consent; hence this suit. Several defenses were presented. The only ones we need consider are: First, that the contract was void; second, that there can be no recovery except upon a quantum meruit, and, in that case, Davis contends, the decree for $1,997.05 was excessive. en 1. Was the contract void? Long ago (1857) this court, in an elaborate and learned opinion by Mr. Justice Scott, traced the origin, and reviewed the history, of the law of maintenance and champerty, as acted into statutes and declared by the courts of England. Lytle v. State, 17 Ark. 608, 663 et seq. The conclusion reached was that such laws were not applicable to contracts between attorney and client providing remuneration to the attorney for services rendered his client in conducting litigation. The English rule avoiding such contracts upon the ground of maintenance and champerty was repudiated, as repugnant to our Jr. 480; Chester County v. Barber, 97 Pa. 455; Stewart v. Houston & T. C. R. Co. 62 Tex. 248; 5 Am. & Eng. Enc. Law, 2d ed. p. 827. This court in Jacks v. Thweatt, 39 Ark. 340, passed upon a contract containing a stipulation whereby the clients agree "to make no settlement without consulting their torneys." But the question as to whether that clause rendered the contract void was not raised or decided in that case. at So far as the amount of the fee as fixed by the contract is concerned, there is nothing in the record to show any unjust or unfair advantage taken by Webber of his client, Davis, in determining the amount. At the time the contract was executed (30th of April, 1894) only seven days had expired from the time (23d of April, 1894) demand was made upon the sheriff for the money which he had been ordered to pay over to Davis. Under the contract Webber was to get no fee unless there was a recovery. While the amount Davis was to receive upon recovery was fixed and certain, the amount Webber was to receive was contingent, depending entirely upon the time that elapsed from the demand until the amount sued for was collected. At the time Webber entered into the contract, neither he nor Davis could know what time would intervene before a settlement might be reached. If the sheriff and his bondsmen had settled the amount, with Webber's consent, in a few days after the contract between Davis and Webber was executed, the amount of Webber's fee would have been very small as compared with the amount of same at the time of the judgment. Davis appears to have been well pleased with Constitution and statutes; and the court their enforcement. Ex parte Plitt, 2 Wall. showed, and might have added, that such a rule was contrary to the genius of our institutions. As was said by Mr. Justice Cobb in Newnan v. Washington, Mart. & Y. 79: "It is consonant with the nature of our institutions that faithful labors should be rewarded by reasonable remuneration, and he who works at the bar, and he who works at the plane, the physician, the farrier, the car penter, and the smith, should all possess an equality of rights, and be paid what they reasonably deserve to have, according to the nature and value of their respective services." And he continues: "We have here no separate orders in society-none of those exclusive privileges which distinguish the lawyer in England, in order to attach him to the existing government, and which constitutes him a sort of noble in the land. But, upon the whole, a lawyer in England is as different from a lawyer here as a man clad in a plain suit of black or blue-his head such as nature made it—is unlike him in appearance who has his body surrounded with a long robe and his head covered with a large wig." As was said by Chief Justice Gibson in Foster v. Jack, 4 Watts, 334: "The dignity of the robe, instead of any principle of policy, furnishes all the argument that can be brought to support" the English rule. Kennedy v. Broun, 7 L. T. N. S. 626, 9 Jur. N. S. 119. More than once since the decision in Lytle v. State, 17 Ark. 608, 663, this court has recognized the validity of contracts between attorney and client, allowing the former a contingent interest in the subject-matter of litigation as compensation for his professional services. Brodie v. Watkins, 33 Ark. 545, 34 Am. Rep. 49; Jacks v. Thweatt, 39 Ark. the agreement. He says: "I told him [Web340; Cockrill v. Sanders (Ark.) 8 S. W. 831. ber] that if he would agree to collect the We are aware that some American courts of $7,114.50 for me, that he could have any peneminent respectability have approved the alty that might be allowed; and if he would English rule, ignoring such contracts. Miles agree to that and agree to set aside all the v. Collins, 1 Met. (Ky.) 308; Dumas v. money that was collected until the whole Smith, 17 Ala. 305; Price v. Carney, 75 Ala. amount of the principal was collected for 552. But see Coquillard v. Bearss, 21 Ind. me, that he could have the amount that 479, 83 Am. Dec. 362; Orr v. Tanner, 12 R. would be allowed as a penalty." Witness I. 94. But see Gilman v. Jones, 87 Ala. 702, Smith, one of the sheriff's sureties, and who 4 L. R. A. 113, for the doctrine now in Ala- was acting as an intermediary between the bama. But the modern, and decidedly pre- sheriff and his other bondsmen and Davis, to vailing, view in this country is, in accord bring about a settlement before suit was inwith the rule adopted by this court, to up-stituted, and who had made a proposition of hold such contracts. See cases collected in settlement to Davis, which Davis had de5 Am. & Eng. Enc. Law, 2d ed. p. 826, and in note to Kennedy v. Broun (1863) 2 Am. L. Reg. N. S. 372. Such contracts, however, should be characterized by the utmost good faith on the part of an attorney towards his client, because of the confidence reposed in him. The courts will scrutinize such con clined, said concerning this: "I told him I was sorry, and that he would regret it more than I ever would; that in twenty-two or twenty-five years from now, when he hadn't gotten a nickle out of it, and a big lawyer's fee on his shoulders, that he would think that Smith was right once. He [Davis] said 'As tracts closely, to see that the uberrima fides to my lawyer's fee, Mr. Smith, I have a conhas been preserved. If there has been "suppression or reserve of fact or exaggeration of tract right here in my safe with a good atapprehended difficulties," or any circum-torney that I am never out a cent attorney's stances of the confidential relationship have been seized upon by the attorney to consummate an oppressive contract with the client, the courts will not hesitate to express their disapprobation of such contracts, and, when called upon, will set them aside or refuse fee, but I must have all of my money before there is any liability for attorney's fee.' I said to him, 'Mr. Davis, you certainly have an elegant contract.' He says, 'I think I have.' Davis was a merchant, a man of intelligence and considerable experience in litigation and in the matter of contracts for | putes that have not even progressed to the lawyer's fees, as the record discloses. A contract with his attorney for fees, which, as the witness reports him, he regarded as "elegant" in the beginning of his important litigation, cannot be avoided for the reason simply that, in the end, it did not bring to him the results which he had anticipated under it. Yet this is about the sum total of his grievance, so far as we can see. Therefore we do not consider what is said by the learned counsel for Davis in their excellent brief, as to good faith, fraud, oppression, extortion, the "severe relationship of trustee and cestui que trust," etc., and the authorities cited on these subjects, as applicable under the facts of this case. The facts, as we view them, fail to show any abuse whatever of the confidential relation of attorney and client, and, were this all, we should uphold the contract. proportion and dignity of a lawsuit, to settle their differences without hindrance from disinterested parties. Parties should be permitted to beg or "buy their peace at any time." It would be difficult to estimate the monstrously unjust consequences that might result to parties willing and ready to settle a demand of this kind, if it lay in the power of an attorney to impede or control such settlement, especially when his interest in doing so was quickened by the stimulating influence of a fee which was accumulating at the appalling rate of $700 per month. It could hardly be expected that such a condition would expedite the litigation, or the settlement either. When a lawsuit has progressed to judgment, then, of course, the attorney, under the statute (§ 4223, Sand. & H. Dig.), may establish his interest in the judgment which has resulted from his services, and this neither party to the litigation can ignore. Then the parties may settle if they wish, but, before there can be any satisfaction of the judgment, the attorney's fee must be paid. Before judgment the attorney can only trust to the integrity and good sense of his client not to compromise without advising with him and making satisfactory arrangements as to the fee. If the attorney should have for his client one who neither has the good sense to consult him nor the integ rity to pay him, then, indeed, would he be unfortunate. But where this is the case, generally, the attorney, unless he expects to give his services as quidam honorarium will deserve censure, rather than sympathy, for having such a client, and will have to suffer the consequences. But the contention that "the provision in the contract preventing Davis from settling the controversy without the consent of Webber is void," is well taken. Such a stipulation is against public policy. "The law," says Judge Dillon in Ellwood v. Wilson, 21 Iowa, 523, "encourages the amicable adjustment of disputes, and a construction of a contract which would operate to prevent the client from settling will not be favored." It is said in Lewis v. Lewis, 15 Ohio, 715, that "a contract with an attorney to prosecute a suit, containing a stipulation that the party should not have the privilege to settle or discontinue it without the assent of the attorney, would be so much against good policy that the court would not enforce it." In North Chicago Street R. Co. v. Ackley, 171 Ill. 100, 44 L. R. A. 177, it is held that "any 2. While the contract sued on is against contract whereby a client is prevented from public policy, and therefore void, yet the settling or discontinuing his suit is void, as making of such a contract is neither malum such agreement would foster and encourage prohibitum nor malum in se. It is not even litigation." The impeachment of the con- of questionable propriety. Therefore the tract under consideration is peculiarly prop-courts, although refusing to enforce such a er upon the ground of public policy, regardless of the fairness and good faith of the parties in executing it. We would not call in question the good faith of the parties to the contract. The record would not justify our doing so. Davis was anxious to procure the services of an attorney to collect the money coming to him without paying out any "ready cash," and, as he says, he did not know whether any penalty would be allowed. Webber was perfectly willing to take the penalty for his fee, and risk the chance of recovering it. This, at the time, was doubtless considered an admirable arrangement by both, and, but for the clause prohibiting Davis making a settlement without the assent of Webber, we can see no objection to it. This clause was fatal to the entire contract. It is not severable from it. It seems to have been an inducement for entering upon the contract. It is impossible for us to say that the parties would have entered upon the contract at all without this clause. To approve such a contract as a precedent would be unprecedented. It is a wise public policy to allow the parties to a lawsuit, or to dis contract, will nevertheless grant compensation for valuable services rendered under it, upon the rule of quantum meruit. 5 Am. & Eng. Enc. Law, 2d ed. p. 828, and authorities cited. The question as to the amount of recovery is one of fact, and one most difficult to decide, in view of the varying opinions of gentlemen distinguished in the profession, as to the value of such services, and also the conflicting opinions of witnesses as to the value of the property accepted by Davis in satisfaction of the judgment; all of which it is proper to consider in fixing the value of the service under a quantum meruit. The court may look to the contract for the purpose of ascertaining what the parties themselves thought the services were reasonably worth, and, in connection with the other evidence, to determine what was the reasonable value of the service actually rendered. Shumate v. Farlow, 125 Ind. 359, 361; La Du-King Mfg. Co. v. La Du, 36 Minn. 473; Clark v. Gilbert, 26 N. Y. 279, 84 Am. Dec. 189. it cannot be taken as the criterion of value for such services. Holloway v. Lowe, But |