I concur. Rev. Stat. 1898, sec. 120, so far as material, provides:
“An attorney and counselor may be removed or suspended by the Supreme Court . . . for any of the following causes: .. . . . (1) His conviction of felony or misdemeanor, involving moral turpitude, in which case the record of conviction is conclusive evidence. (2) ■ . . . Any violation of the oath taken by him or of his duties as such attorney and counselor. . . . (5) For any other act to which such a consequence is by law attached.” Section 122
*318reads: “Proceedings to remove or suspend an attorney and counselor under tbe first subdivision of section 120 must be taken by the court on the receipt of a certified copy of the conviction. Proceedings in other cases may be taken by the court for matters within its knowledge, or may be taken upon the information of another.” Section 123: “If the-proceedings are upon the information of another, the accusation must be in writing.” Section 124: “The accusation must state the matters charged, and be verified by the oath of some person to the effect that the charges therein contained are true.” Section 130: “If the accused . deny the matters charged, the court must, at such time as it may appoint, proceed to try the accusation.” (Italics mine.)
31 The proceedings in question were instituted under sections 123 and 124; hence the only matter the court was called upon to try was the matter charged in the information. The entire record of the proceedings, with the exception of the original information upon which the proceedings were based, is before us, and clearly shows, independent of the substituted information filed in the cause, that the only charge made against Evans and Rogers was that of champerty. A demurrer was interposed by Evans and Rogers to the information. Typewritten briefs were filed, in which the question raised by the demurrer-was stated and discussed by counsel for Evans and Rogers and by the Attorney-General, who appeared in the cause as counsel for the state. The Attorney-General, in his brief, illustrated the question presented by the demurrer in the following language: “The question for consideration in this case arises upon the demurrer to the information filed in this court, . . . charging respondents, Evans and Rogers, with having entered into a champertous contract, and to have been guilty of acts inconsistent with their office, etc. . . . This court has held, in the case of Nelson v. Evans & Rogers, 21 Utah, 203, 60 Pac. 557, that the contract made between the respondents and Nelson was champertous, and say in that opinion that ‘counsel for the de*319fendants (defendants being respondents in this case), in support of the demurrer, claimed that the facts as stated in the complaint show that it does not state a cause of action, for the reason that it appears therefrom that the contract made as there alleged was champertous as between the parties thereto. . . The contract entered into by respondents having been declared to be champertous by this court, and it further appealing that the respondents avoided such ■contract on the ground of its champertous nature, the question for determination is as to whether or not such conduct on the part of attorneys and counselors at law is sufficient ■cause for disbarment.” (Italics mine.)
In the respondents’ brief it was said: “The sole question for determination by the court is as to whether the information filed . . . states such a case as to lead the court to the conclusion that the respondents are unfit to practice at this bar. . . . The charge is that respondents 'entered into an unlawful, champertous contract with Alfred H. Nelson, deceased.’ And that 'they also entered into an unlawful and champertous contract with one Thomas Nelson. . . .’ In other words, upon this hearing the sole question for consideration is as to whether, if an attorney enters into a champertous contract, that is a sufficient ground for disbarment.” (Italics mine.)
In neither of the briefs mentioned is there any statement, suggestion, or word to the effect that Evans and Rogers, or either of them, had in their possession a dollar that belonged the estate of Charles A. Nelson, deceased, or to any of the beneficiaries thereof. Nor is there a suggestion that they, or either of them, was in any respect unfaithful to, or unmindful of, their client’s interest in the case of Nelson v. Southern Pacific Railway Company, to which the contract in question referred, or that they were derelict in their duty to their clients in any other case or cases. The only question discussed in the briefs was the question of whether the contracts mentioned were champertous. Furthermore, the findings of fact proposed and submitted by the relator in the disbarment proceedings to the referee as the *320findings in the ease are among the papers on file herein, and they contain no statement, nor even a suggestion, from which, it can be inferred that there was any claim made at the-hearing, or at any other time, that Evans and Rogers, or either of them, was withholding or that they or either of them had in their possession, any fund or money belonging to the Charles A. Nelson estate. Those proposed findings-refer only to facts having some bearing upon the question of champerty. Moreover, I have read the record containing a transcript of the evidence submitted on the hearing before the referee, and it shows that no claim was made, nor was it even. suggested by the relator, the Attorney-Ceneral, or by counsel who were appointed as friends of the court at the hearing on the merits, that there was any money due from Evans and Rogers or either of them, or that they had any money or fund in their possession or under their control belonging to the Charles A. Nelson estate; nor was any evidence offered for the purpose of establishing any such-fact. On the contrary, the record, as made before the referee, shows that the Attorney-General, who examined the witnesses called by the state and cross-examined the witnesses who testified for respondents (petitioners herein), endeavored to show that Thomas Nelson complied in every particular with the terms of the contract in question; and that he (not the widow and children of Charles A. Nelson) was in effect defrauded out of what was due him, because Evans & Rogers availed themselves of the alleged cham-pertous character of the contract as a defense in his suit against them.
Thomas Nelson, who made and subscribed to the affidavit upon which the disbarment proceedings were instituted, was called as a witness by the state, and testified in part as follows :
“Q. Where did you get the affidavit from; who drew it up for you? A. Well, I think Mr. Williams drew the main part of it. . . . I sent him the facts first, and then he put it in form for me and sent it back to me. . ■. . Q. You sent him the facts to draw the affidavits from and *321paid him seventy-five dollars; that is, to prepare the papers necessary to institute these proceedings ? A. Yes, sir. . . . I wanted to place Mr. Evans and Rogers on record in the Supreme Court in this matter, and I told him that. Q. I understand you to say that you wanted to put Evans & Rogers on record in the Supreme Court? A. If they didn’t settle with me. Q. What you were anxious for was to collect under your contract ? A. I wanted my money. . . . I brought proceedings against them with the hope of getting my money. . . . Q. Mr. Nelson, what satisfaction did you expect from placing Evans & Rogers on record in this case ? A. Well, I don’t know what you would call it, perhaps revenge. . . . They made a; contract with me that they knew was illegal, and that they could make void and I could not collect, and then to take advantage of that contract and deny it and repudiate it after I had performed my part of it.”
And I here remark, parenthetically, that the evidence of Thomas Nelson, above set forth, which is not disputed nor the effect of it in any sense neutralized hy the testimony of any of the witnesses who testified in the case, shows that the disbarment proceedings, so far as he was concerned, was a case of blackmail to extort money from Evans & Rogers, which this court, in the opinion under consideration, held he was not entitled to receive. On this phase of the controversy this court, so far as material here, said that the services for which “Alfred H. Nelson was, under the agreement, to receive through Thomas Nelson, amounting to $1793.33, . . . were never rendered.” And, again, the court said: “Neither Alfred H. Nelson nor Thomas Nelson was entitled to receive any part of the amount recovered under said contract.”
On the filing of the report of the referee and the findings of fact made by him, together with a transcript of the evidence taken at the hearing, the Attorney-G-eneral and counsel appointed by, and who appeared in the cause as friends of the court, jointly filed a brief in the cause on behalf of the *322state. Tbe questions of fact discussed iu tbe brief relate solely to tbe conduct of Evans & Bogers in entering into tbe alleged cbampertous contract, and tbe only legal questions therein discussed relate to tbe law of champerty. Tbe only reference made in tbe brief to tbe matter which seems to have impelled this court to make additional findings and to render tbe judgment complained of is tbe following: “We think tbe respondents will not thank their counsel for tbe suggestion, in their brief, that tbe $1666.66 retained by them is tbe money of their clients, and not their own. This would be shunning Scylla and falling into Charybdis.” Moreover, counsel who represented Thomas Nelson in bis suit against Evans & Bogers, and who, after familiarizing himself with all of tbe facts, prepared tbe information upon which tbe disbarment proceedings were instituted, in integrity, legal learning, and ability stands high in bis profession. In fact, in these respects be is regarded as tbe peer of any member of tbe bar of this court. It is apparent that it did not occur to him, either in tbe Thomas Nelson suit against Evans & Bogers, in which be sought to recover for bis client tbe $1793.33, or in tbe disbarment proceedings, that this money belonged to tbe widow and children, and that Evans & Bogers were wrongfully withholding it from them. As I have stated, it was not claimed, nor even suggested, either by tbe Attorney-General or tbe eminent counsel who appeared in tbe case as friends of tbe court, that tbe widow and children, in tbe order and decree of distribution of tbe money recovered, did not receive every cent that they were entitled to receive. On tbe contrary, tbe only reasonable inference that can be drawn from tbe record is that all of tbe attorneys mentioned believed that if it were not for tbe alleged cbampertous character of tbe contracts mentioned Thomas Nelson would have been entitled to receive this money from Evans & Bogers. I invite attention to tbe attitude of counsel for Thomas Nelson and tbe attorneys - who appeared for tbe state merely for tbe purpose of showing that, even if it were conceded that tbe widow and children were entitled to tbe $1793.33 mentioned, *323it nevertheless was a question upon which legal minds might well differ, and would have a material bearing on the question of good faith on the part of Evans & Rogers, who have persistently claimed that they were entitled to this money, and not Thomas Nelson. And I think the only reasonable inference that can be drawn from the record is that it never occurred to them that the widow and children were entitled to any more than the one-half of the judgment, which was paid them, until their attention was called to the brief filed in the case by their counsel, in which it was said: “If Thomas Nelson did not perform the consideration he promised, viz., secure the attendance of the nonresident witnesses, then Evans & Rogers, who, by that contract, were made trustees of one-third of one-half of the recovery, would have been grossly derelict in duty, violating the rights of their clients, the real beneficiaries, had they paid said Thomas.” Regarding this statement of counsel this court, in the opinion, at page 383 of 22 Utah, page 918 of 62 Pac. (53 L. R. A. 952, 83 Am. St. Rep. 194), says: “The declaration in the respondents’ brief that they were made trustees of that amount ($1793.33) for their clients, the real beneficiaries, was evidently an afterthought. At the argument before us, when the attention of respondents’ counsel was called to that declaration, one of them, in the presence of one of the respondents, . . . notwithstanding his name was attached, as an attorney, to said brief, disputed that declaration, and declared that the respondents were entitled to retain the whole sum distributed to them.” This declaration on the part of counsel was clearly a repudiation of the statement made in the brief. How, then, can it be said that; Evans & Rogers admitted that they were derelict in their duty to their clients, and especially in face of their sworn testimony, wherein they claimed that they were entitled to the money distributed to them ?
Neither the widow, nor any other person who was interested, either directly or indirectly, in the suit against the railroad company - or in the disbarment proceedings, has ever suggested or even intimated, so far as shown by the *324record, that tbe services contracted for by' tbe widow were not fully performed in every particular. In fact, tbe loyalty of tbe attorneys, especially tbat shown by Evans & Rogers, to tbeir clients, and tbe perseverance witb wbicb they prosecuted tbeir claim against tbe railroad company under circumstances wbicb tbe record shows were of tbe most discouraging character, was highly commendable. They advanced (loaned) tbe widow money to enable her to come from her home to Ogden and be present and testify in tbe cause at tbe several trials (five in number), and to pay other necessary costs and expenses. She was therefore advised tbat after tbe first trial was bad Evans & Rogers, in effect, carried on tbe litigation for her and finally brought it to successful termination. For aught tbat appears in tbe record, tbe widow was perfectly satisfied witb tbe manner in wbicb tbe case was bandied by Evans & Rogers and the outcome of it, and witb tbe amount (one-balf) of tbe Judgment tbat was distributed to her and1 tbe children. It thus appears tbat this question — the assumed dereliction of duty on tbe part of Evans & Rogers to tbeir clients, and upon wbicb tbe final order in tbe opinion is based — was by this court, acting under a misconception of tbe facts, and by a misapplication of legal principles to tbe facts, imported into tbe case on its own motion, after tbe case was argued and submitted. In tbe opinion and judgment complained of it is said tbat Evans & Rogers “put into tbeir own pockets” $1193.33 tbat belonged to tbeir clients. Tbe court therefore, without its power being invoked, went entirely outside of tbe issues and in effect •adjudged1 Evans & Rogers guilty of a crime witb wbicb they bad not been charged, and concerning wbicb no evidence was adduced. For aught tbat appears in tbe record, tbe first intimation tbat Evans & Rogers received tbat they were accused of having appropriated to tbeir own use tbeir clients’ money was when tbe opinion and judgment under consideration was announced by tbe court.
*32532 *324It requires no argument to show tbat tbe court, in effect, adjudging these parties guilty of a crime not charged in tbe *325information, and without giving them an opportunity to be heard, acted without jurisdiction. “Courts have no power to adjudicate matters not involved in issues in the case before them; and such adjudications, if made, are not binding.” (12 Ency. Pl. & Pr. 130, and cases cited in note.)
This court, in the case of Maynard v. Insurance Ass’n, 14 Utah, 458, 47 Pac. 1030, referring to certain facts found that were not within the issues, said:
“This, however, is a fact found outside of any issues raised in the pleadings; for nowhere in the complaint or answer does there appear any reference to such a hy-law, nor is its existence shown anywhere in the transcript or abstract, except in the findings of fact. A fact found outside of any issue cannot be considered as supporting the judgment, because facts not in issue need not be found; and, if found, the finding is nugatory and without effect.”
In Cooley’s. Constitutional Law, at page 232, the author, in defining the term “due process of law,” quotes and adopts the language of an eminent advocate and statesman, as follows:
“By the ‘law of the land’ is most clearly intended the general law — a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.”
In Story, Const. (5 Ed.), sec. 1946, the author says:
“When life and liberty are in question, there must, in every instance, be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal with proper jurisdiction, and a conviction and judgment, before the punishment can be inflicted.” See 3 Words and Phrases, pp. 2244, 2245.
In Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914, the Supreme Court of the "United States, speaking through Mr. Justice Eield, says:
“Wherever one is assailed in his person or his property, there he may defend; for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.”
*32633, 34 There is another reason why that part of the opinion in which it is found that Evans & Rogers “put into their own pockets” and appropriated' to their own use money that belonged to their clients cannot be upheld. An order or decree of distribution of the money recovered from the railroad company was made by the district court of Weber county. Under this decree one-half of the fund was distributed to the widow and minor children of Charles A. Nelson and one-half to Evans & Rogers in payment of their contingent fee due them by the terms of their contract with the widow of Charles A. Nelson, through Alfred H. Nelson. The law is well settled that a decree of distribution in probate proceedings, after due and legal notice, by a court having jurisdiction of the subject-matter, is conclusive as to the fund, items, and matters covered by and properly included within the decree until set aside or modified by the court entering the decree in the manner prescribed by law, or until reversed on appeal.
In 2 Black on Judgments, sec. 643, the author says:
“Thus, where a judge of prohate has, hy a decree, allowed a widow her distributive share in her husband’s estate, the accuracy of the decree, as to the amount by law allowable to her, cannot be called in question collaterally.”
And, again, in section 644, it is said:
“A decree of the probate court settling an executor’s or administrator’s final account and discharging him from his trust, after due legal notice, and in the absence of fraud, is conclusive upon all matters or items which come directly before the court, until reversed; and it will be presumed that it was founded upon proper evidence, and that every prerequisite to a valid discharge was complied with; nor can the decree be impeached in any collateral proceeding.”
In 23 Cyc. 1055 the text, which is written by this same author, contains the following terse statement of the rule as applied to judgments generally:
“A judgment, rendered by a court having jurisdiction of the parties and the subject-matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment in respect to its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding.”
*327And on page 1061 tbe same author says:
“Orders and decrees of a surrogate, or of a probate or orphans’ court, in any case in which jurisdiction has attached, are not open to contradiction or re-examination in any collateral proceeding.”
And, again, on page 1063, after illustrating what constitutes a direct attack on a judgment, the same author says:
“On the other hand, if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may he important or even necessary to its success, then the attack upon the judgment is collateral. This is the case where the proceeding is founded directly upon the judgment in question, or upon any of its incidents or consequences as a judgment, or where the judgment forms a part of the plaintiff’s title, or of the evidence by which his claim is supported.”
The order and judgment of this court requiring Evans & Rogers to deposit with the clerk of this court $1793.33, with interest thereon, “for the use and benefit of the widow and minor children of Charles A. Nelson,” was, at least, a partial annulment of the order and decree of distribution theretofore made by the district court of Weber county of the money recovered from the railroad company in the suit mentioned. This court, by thus collaterally impeaching and in effect annulling the order and decree of the district court, clearly acted without jurisdiction. I do not wish to be understood as. holding that this court may not, in a proper proceeding, order an attorney and counselor at law licensed to practice before the courts of record of this state, who wrongfully withholds money or funds from his clients, to account to them for such money or funds, and, if he. fails to comply with the order, to suspend or permanently disbar him. If this court, when its attention was called to the order and decree of distribution, had refused to be bound by any feature of it, on the ground that it was absolutely void because of the alleged champertous features of the contract under which it was obtained, and had required Evans & Rogers to pay the entire sum retained by them, under the decree, into court, and left them to recover for their services on a quantum *328meruM, it might be argued with much force that, since they were officers of the court, such an order, under the circumstances, would have some legal basis upon which to stand. This court, however, did not make the order requiring Evans & Rogers to pay to the clerk of this court, for the use and benefit of the widow and children, the $179 3.3 3 mentioned, on the ground that the order and decree under which they retained the money was void. The court, by making its order, recognized the validity of the decree of distribution, and, in effect, held that the basis upon which the distribution of the fund was made was inequitable; and the order made was, in effect, a modification of the decree.
No claim was made, nor was there any intimation by anyone at the hearing of the disbarment proceedings, so far as shown by the record, that Evans and Rogers, or either of them, induced the court to make and enter the order and decree of distribution of the money recovered in the suit against the railroad company to the parties entitled thereto through misrepresentation or other unprofessional conduct. In fact, this question, as hereinbefore stated, was not an issue in the proceedings. It was incidentally referred to by David Evans in his testimony regarding the settlement which he claimed he had with Mrs. Nelson and Thomas A. Nelson. In the opinion it is said: “It appears from the record that Alfred II. Nelson, the administrator, was absent from the state when the order of distribution was made; and, while it does not in express terms appear that Evans & Rogers obtained the order of distribution, it is inferable that they did. Whether they did or did not procure the order, they knew of its provisions, and received one-half of the recovery with full knowledge of all the facts in the case. Neither does it appear that the widow, nor anyone legally qualified to act for the minor children, appeared or was represented in the proceeding in which said order was granted, or that Evans & Rogers advised the widow, or any representative of the minor children, that the widow and minor children were entitled to $1793.33 more than allowed them by the order of distribution.”
*32935 In the absence of any showing to the contrary, the presumption is that the order and decree of distribution made and entered by the district court were regular and proper. (Black on Judgments, see. 210; 23 Cyc. 1047.) There is absolutely nothing in the record from which it can be inferred that there was any irregularity whatever in the proceedings leading up to and which culminated in the making of the order and decree of distribution. The language of the opinion above set forth, however, seems to imply that some undue advantage was taken of the widow and children by Evans & Rogers, or with their connivance, when the order and decree of distribution was procured. The only evidence in the record on that question was given by Mr. Evans, and is as follows: “Q. The judgment was affirmed by the Supreme Court of the state ? ' A. Yes; and the money was distributed to the proper parties — Mrs. Nelson getting one-half under the contract which we made. Q. It was not paid to A. H. Nelson, as administrator? A. A. H. Nelson had left in the meantime, and these payments were all made under the order of the court — the matter was in the court, and the matter of the estate of Charles A. Nelson, deceased, was pending, and, Nelson being absent, the whole matter was referred to the second judicial district court, . . . and the money distributed in this way under the order of the court. Q. How was the money distributed under the order of the court? A. It was distributed one-half to the widow and her two children and one-half to Evans & Rogers as fees in the case, aside from the witness’ fees, clerk’s fees, etc., which were recovered that was paid to the several parties entitled to it. Mr. Nelson then, after the money had been recovered, and having refused at that time to do anything, demanded fulfillment of that contract which is marked here ‘Exhibit A.’ ”
And further along in his testimony he said:
“I would like to state right in that connection, too, that at the time I came to settle with Mr. Nelson, to settle with all the parties, they were all present, the widow, Nelson, and all interested; that Nelson insisted that we had made *330a contract with him by which we agreed to pay him one-half of onr fees in the Saunders Case and one-half in the Nelson Case, and I told him that no such contract was made at all, and he seemed to be somewhat dissatisfied about it, and he figured up all the money which he had expended in procuring witnesses, . . . and he was paid by the parties in the manner which I have suggested, somewhere in'excess of that which he advanced; and I supposed the thing was all satisfactory until he came in the next day and said he had a contract which we made with him in the Nelson Case, and exacted a settlement for that and . stated that if that contract was not fulfilled he would sue us.”
The foregoing is the only evidence in the record bearing upon the distribution of the fund in question under the order of the court.
36 I now come to the question, and the only question, that was in issue in the disbarment proceedings, namely, were the two contracts in question, or either of them, champertous? I refer to the contract entered into by Evans & Rogers and Alfred H. Nelson, on the one hand, and the widow of Charles A. Nelson, on the other, and the contract entered into between Evans & Rogers and Thomas Nelson. I am clearly of the opinion that neither of the contracts was champertous, as the term is now defined and understood. Nor do > I think that either of them was •against sound public policy. The contract under which Evans & Rogers represented the widow and children of Charles A. Nelson in the prosecution of their1 claim against the railroad company was made with the widow, through Alfred H. Nelson. The evidence, without conflict, shows that she 'authorized Alfred H. Nelson to make the contract; and the evidence is undisputed that the contract was made before Alfred H. Nelson was appointed administrator of the estate of Charles A. Nelson deceased. Mr. Rogers testified, and the evidence is corroborated’ by the testimony of other witnesses and not disputed by any, as follows:
*331“A. H. Nelson, ... in February, 1892, came into the office of Evans & Rogers, . . . and apprised me of the fact that his brother, Charles Nelson, had been killed in the previous January, while transporting a carload of sheep from Nevada to California, and showed me some letters which he had from the widow of Charles Nelson, asking him to look into the matter or cause of her husband’s death, and furnished him in the letter 'the names of persons who were eyewitnesses to the cause of his death: He also had a newspaper clipping from some Nevada paper, purporting to contain an account of his brother’s death and cause of it, and consulted me about it. And the result of the conversation was that he was advised by me to write for further particulars in regard to the matter. He received another letter from his sister-in-law, the widow of Charles Nelson, in which she stated' that she placed the matter entirely in his hands as her attorney, and desired him to do everything which was necessary to secure compensation from the Southern Pacific Company for the negligent killing of her husband, and. directed him, if he saw fit, to employ other attorneys to assist him in the case. . . . We agreed to make a contract to prosecute the case on behalf of the widow and her minor children against the company for fifty per cent, of whatever sum was recovered, the fifty per cent, compensation to be divided between A. H. Nelson and Evans & Rogers, he to receive one-third, and Evans & Rogers to receive two-thirds. Q. The time that you made this contract, was A. H. Nelson administrator for the estate? A. No, sir. He was appointed administrator afterwards, simply for the purpose of promptly prosecuting the suit on behalf of the widow and children. . . . He was selected on account of the relationship, and the fact that he was a brother of the deceased' — more for convenience, perhaps, than anything else. . . . Q. After the contract was made with A. H. Nelson and suit was commenced, and he was appointed administrator, state whether or not Nelson left Ogden. A. Tes, sir. . . . He left Ogden in 1893 and before the trial of Nelson v. Southern Pac. Co. . . . *332Tbe case was first tried in November or December, 1893; tried at Ogden, and a nonsuit was granted. Q. At tbat time bad you a contract witb Tbomas Nelson ? A. No, sir. Q. Tbat was afterwards ? A. Yes, sir. Q. You may state wbetber, after tbe nonsuit was granted, you commenced another suit in tbe name of tbe administrator for another causo of action. A. Yes, sir; under tbe same, witb A. H. Nelson representing tbe widow and children, having authority from her to employ attorneys to assist her.”
Mr. Evans testified concerning these transactions as follows :
“Q. State, as nearly as you can, Mr. Evans, tbe terms of tbat contract. A. I can only state in a general way. Tbe terms of tbe contract were tbat we agreed, tbe three of us, A. H. Nelson and Evans & Rogers, to prosecute tbat cause for one-half, a contingent fee of one-balf. Q. Whom did you agree witb ? A. We made an agreement witb tbe widow and children, as I understand it. I am not clear about tbat contract, because I didn’t draw it. ... I did not draw up tbe contract; but my recollection is tbat be [Nelson] communicated witb bis people in Nevada and California, and they agreed there to give one-balf to tbe three of us if we would take tbe case.”
Regarding tbe understanding tbat Evans & Rogers bad witb tbe widow, Mrs. Nelson, relative to the payment of costs, etc., Mr. Evans testified as follows:
“Mrs. Nelson, being an important witness on tbe question. of damages, appealed to us — that is, Evans & Rogers— for assistance to bring her from California to Utah, in order to give her testimony in tbe case, and likewise to exhibit whatever interest a widow woman, under tbe circumstances, would have. She stated to us tbat she would be glad if we would lend her tbe money or advance it to her; tbat she would return it to us wbetber we won tbe case or lost it, if she bad to earn her money witb her needle. Under this appeal Evans & Rogers advanced her tbe money to bring her here every time she testified in tbe case, which, I believe, was four times. . . . Mrs. Nellie Nelson was a seam*333stress by trade, bad two minor children, and bad no income or support whatever, except that which she earned with her needle. . . . The ease either had to go by default, or we had to lend money to the widow for the purpose of assisting her in carrying it on. . . . That arrangement, however, was not made with her until after the case was ■instituted. . . . She returned, after she received her money, every dollar which we had advanced to her, to us— paid us.”
The foregoing evidence, which is not disputed in any particular, clearly illustrates the terms of the contract between the widow, on one side, and Evans & Rogers and Alfred H. Nelson, on the other. Under the contract these three attorneys were to receive for their services one-half of any amount recovered from the railroad company for the death of Charles A. Nelson, and the widow and the minor children one-half. The widow did not, as the opinion of this court seems to imply, make a separate and independent contract with Alfred U. Nelson for his services, in which she agreed to pay him one-third of one-half of any amount that might be recovered, and another separate and independent contract with Evans & Rogers for their services, in which she agreed to allow them two-thirds of one-half of any amount that might be recovered. The only inference permissible from the evidence is that the widow made but one contract, and by the terms of that contract she agreed to give the three attorneys mentioned a .lump sum of one-half of the amount recovered. No claim was, or is made, that the attorney’s fee agreed upon between the parties and later allowed by the district ceurt in its order and decree of distribution of the money recovered from the railroad company was, under the circumstances, unconscionable, or in any sense disproportionate to the services rendered. Therefore, so long as the attorneys safeguarded their clients’ interests in the suit against the railroad company and discharged every duty required of them by the terms of the contract, it was no concern of their clients on what basis they divided between themselves the fee received for their services, or, for that mat*334ter, wbat arrangements they made between themselves regarding the disposition of it.
37 After the contract referred' to was made with the widow, the attorneys reduced to writing the oral agreement they had between themselves regarding the basis upon which the fee should be divided in case of a recovery. Alfred H Nelson, who was a witness for the state, testified that the contract between himself and Eivans & Rogers was “similar” to the Thomas Nelson contract set forth in the foregoing opinion written by Mr. Justice Straup. Mr. Nelson was asked the following question by the Attorney-General: “At the time of making the contract between yourself and Messrs. Evans & Rogers, had you been appointed administrator of the estate of your brother?” And he answered: “I don’t remember; I think not, but my recollection is not perfectly clear as to that. I know we talked the matter over about the bringing of a suit for some days, possibly some weeks, before we did anything. We looked the matter up quite carefully. Mr. Horn and myself spent a great deal of time in Evans & Rogers’ office looking up authorities and studying the case before we finally decided to do anything.” He also testified that he was appointed administrator “simply to facilitate the prosecution of the action with the railroad company.” Mr. Evans testified positively that the contract with Alfred H. Nelson was, in substance the same as the Thomas Nelson contract, and that it was executed before Nelson was appointed administrator, and that “he [Nelson] was appointed administrator afterwards, simply for the purpose of promptly prosecuting the suit on behalf of the widow and children. . . . He was selected on account of the relationship1 and the fact that he was a brother of the deceased — more for convenience than anything else.” Rogers testified in relation to these questions, and his evidence is, in substance, the same as that given by Mr. Evans. The only evidence in the record regarding the nature of the contract between Evans & Rogers and Alfred H. Nelson, the time when it was executed with ref*335erence to tbe time Nelson, was appointed administrator, and tbe reason why be, instead of some other, was appointed, is tbe evidence of these parties. As stated in tbe opinion written by Mr. Justice Straup, tbe case was tried five times in tbe district court, and was brought to this court three times on appeal. Tbe ease was first tried in tbe district court in November or December, 18.93, and the plaintiff was nonsuited. Soon after tbe trial was bad, Alfred U. Nelson left Utah and located permanently in California. Before leaving Utah be and bis brother, Thomas Nelson, called upon Evans & Bogers at their offices in Ogden, and after some discussion between tbe parties tbe Thomas Nelson contract was entered into under tbe circumstances and conditions as stated by Mr. Justice Straup in tbe foregoing opinion.
But few rules of tbe common law have undergone more sweeping changes in their application than those relating to maintenance and champerty. Under tbe old common law doctrine tbe transfer of cboses in action was prohibited. Tbe reason for this rule was, as stated by Mr. Cbitty in bis work on Bills, (section 6), that
“Such alienations tended to increase maintenance and litigation and afforded means to powerful men to purchase rights of action, and thereby enabled them to oppress indigent debtors whose original creditors would not, perhaps, have sued them.”
In Bay on Contractual Limitations (page 119) tbe author, after giving a brief history of tbe law of maintenance and champerty, says:
“The peculiar state of society out of which such a law grew carried it to the most absurd extremes. Men were held indictable for aiding a litigant to find a lawyer; for giving friendly advice to a neighbor as to his legal rights; for lending money to a friend to vindicate his known legal rights; for offering voluntarily to testify in a pending suit; and other like offices of charity and friendship. It is not surprising, therefore, that the law on this subject has gradually undergone a great change, which is recognized universally by jurists, judges, and law writers everywhere.”
And, again, on page 120 tbe author says:
*336“This change has been called for by the new conditions of modern society, considered in its varied relations, commercial, political, and sociological. In many of its phases it has been, both in America and England, emphatically discarded as ‘inapplicable to the present condition of society, and obsolete.’ It is accordingly asserted on high English authority that no one has been punished criminally for the offense of maintenance or champerty within the memory of living man.” Stephen, Crim. L. 234.
Warvelle, in bis work on Legal Ethics (section .146), says:
“The ancient doctrine of maintenance grew out of conditions which do not exist and never have existed in the United States. Having little or no foundation in reason, it has fallen into disuse; and the general rule now is that any person claiming a right may contract to pay, for legal services rendered in vindicating it, a stipulated portion of the thing, or of the value of the thing, when recovered, the payment to be dependent solely upon such recovery, instead of paying, or contracting to pay, a certain sum and in any event. Such an agreement does not conflict with the law as now administered; nor does it, in any proper sense, contravene any principle of public policy.”
And, again, the author, after referring to the arguments generally made against such contracts on ethical grounds (section 150), says:
“It not infrequently happens that persons are injured through the negligence or willful misconduct of others, but who yet, by reason of poverty, are unable to employ counsel to assert their rights. In such event their only means of redress lies in gratuitous service, which is rarely given, or in their ability to find some one who will conduct the case for a contingent fee. That relations of this kind are often abused by speculative attorneys, or that suits of this character are turned into a sort of commercial trafile by the ‘personal injury’ lawyer, does not destroy the beneficient idea last discussed. So it will be seen that much can be said in favor of contingent fees, viewed solely from an ethical standpoint.”
See, also, Archer on. Ethical Obligations of the Lawyer, p. 191.
*33738 *336According to the weight of modern authority “champerty is a species of maintenance, ‘being a bargain with the plaintiff or defendant to divide land or other matter sued for between them if they prevail at law; whereupon the chain-*337pertor is to carry tbe party suit at bis own expense.’ ” (2 Words and Phrases, 1047.) While there are some decisions to the contrary, the great weight of authority is to the effect that, where an “attorney does not undertake to support the litigation at his own expense, or to indemnify the client against costs and charges, but merely agrees to render the ordinary services of an attorney, in consideration of receiving a percentage of the money or thing recovered, . . . that this does not constitute cham-perty.” (6 Cyc. 859, 860, and cases cited in note 41.) And on page 862 of the last-cited volume it is said:
“It is neither against public policy nor champertous for an attorney to loan his client money with which to pay costs of suit, nor to advance money necessary to carry on the suit as needed, when such advances are made as a loan, with the express or implied understanding or agreement for its repayment, and there is no contract of indemnity against the client’s liability to pay costs.”
This doctrine has been recognized and followed in this jurisdiction. (Potter v. Ajax Min. Co., 22 Utah, 273, 61 Pac. 999.)
In 5 Am. & Eng. L. 829 it is said:
“The doctrine of champerty and maintenance does not prohibit an attorney retained in a case from advancing the necessary incidental costs of litigation; and, even though he advances the money to pay such costs without special agreement, he may recover from his client the amount so advanced.”
In 1 Page on Contracts, see. 339, the author quotes and •adopts the language of 4 Blaekstone Com. 135, as follows:
“A man may, however, maintain the suit of- his near kinsman, ¡servant, or poor neighbor out of charity and compassion, with impunity,” and adds: “A parent may supply his daughter with funds to sue, as for breach of promise and seduction. So it is not maintenance for a wife to aid her husband.”
(See, also, section 341, same volume.)
In Brown v. Bigne, 21 Or. 260, 28 Pac. 11, 14 L. R. A. A. 745, 28 Am. St. Rep. 752, the syllabus, which correctly reflects the doctrine as announced in the opinion, is as follows:
*338“A fair, tona -fide agreement by a lawyer to supply funds to carry on a pending suit, in consideration of having a share of the property in controversy, if recovered, is not per se void, either on the grounds of champerty, as now understood, or of public policy."
So in the case of Wood v. Casserleigh, 30 Colo. 287, 7t Pac. 360, 97 Am. St. Rep. 138, it was held that the furnishing of documentary evidence and agreeing to pay expenses of litigation for a contingent fee, the claim being a valid one, is not against public policy. (See, also, O'Driscoll v. Doyle, 31 Colo. 193, 73 Pac. 27.)
There is not a scintilla of evidence in the record that: shows, or tends to show, that Evans & Rogers agreed to prosecute the suit against the railroad company at their own expense for the widow and minor children of Charles A. Nelson; but, on the contrary, the evidence, without conflict, shows that after the contract was entered into and the> suit commenced Evans & Rogers advanced certain sums of money to the widow to carry on the litigation, with the understanding that she would repay to them the sums so advanced, which she accordingly did. Therefore, under the great weight of authority and the decisions of this court, the contract was not champertous; nor did it in any respect contravene any rule of public policy. (Potter v. Ajax Min. Co., supra.) It seems that this court, in determining the character of the contract made with the widow, through Alfred if. Nelson, looked solely to the allegations of the complaint in the suit of Thomas Nelson v. Evans & Rogers, instead of considering the terms of the agreement itself, as shown by the evidence in the matter under investigation.
39 The contract made by Alfred H. Nelson with Evans & Rogers, fixing the basis on which the contingent fee should be divided between them in case of a recovery against the railroad company, under the circumstances, was not in any sense adverse or prejudicial to the interests of the widow and children. Alfred H. Nelson was a brother of the deceased, Charles A. Nelson; and under practically all of the authorities 'he had the ethical, as well as the legal, right to assist the widow and minor children of *339bis deceased brother in their suit against the railroad company. The fact that, by the terms of his contract with Evans & Rogers, he was to be paid out of the contingent fee agreed upon, instead' of being paid out of the portion of the fund that went to the widow and children, rather inured to the benefit of, than prejudiced, the rights of the widow and children. There can be no question that Evans & Rogers hiad the right — in fact, it was their duty — to take the necessary steps to procure the presence of witnesses who were ■familiar with the transaction and circumstances under which Charles A. Nelson lost his life, and, if the witnesses who resided in Nevada, and were outside of the jurisdiction of the court could not be induced to attend the trial in person, to take their depositions. Alfred H. Nelson, being associated with Evans & Rogers as counsel in the case, also had the legal and ethical right to perform those services for which he was to receive no compensation other than the portion (one-third) of the contingent fee agreed upon. Un~ ■der these circumstancesi I fail to understand upon what ground it can be successfully claimed that his interests were in any sense antagonistic to those of the widow and children, •or upon - what theory his contract with Evans & Rogers regarding the portion of the contingent fee he should receive for his services can be held to be champertous or against public policy. As I have stated, the record shows that after the first trial was had the Thomas Nelson contract was entered into. The evidence, without conflict, shows that this contract was “similar” to the contract that Evans & Rogers made with Alfred H. Nelson. Therefore what I have said regarding the validity of the Alfred H. Nelson contract applies with equal force to the Thomas Nelson contract.
40 I fully concur in the observations made and conclusions reached by Mr. Justice Straup regarding the references made in the opinion under consideration to the Croco Case, 18 Utah, 311, 54 Pac. 985, 44 L. R. A. 285. There were, however, some matters involved in the ease of Kennedy v. Oregon Short Line R. Co., 18 Utah, 325, •54 Pac. 988, that were pleaded by Evans & Rogers in their *340answer in the disbarment proceedings. In that case the plaintiffs, Mrs. Kennedy and ber children, three of whom were- minors, sought to recover damages from the railroad company for the death of P'atrick Kennedy, who was the husband of Mrs. Kennedy and father of the children mentioned, which they claimed was caused by the negligence of the railroad company. Evans' & Rogers represented the plaintiffs, and the railroad company was represented by its general counsel, Mr. Williams, who prepared the information in the disbarment proceedings and presented it to this court, and who was also the state’s principal witness in the proceedings. It appears, that Evans & Rogers had a contract with the widow and children of Mr. Kennedy, the deceased, similar to the contract here involved, by the terms of which they were to be paid a contingent -fee, in case a recovery should be had against the railroad company. In their answer filed in the disbarment proceedings Evans & Rogers alleged that, while the Kennedy Case was pending and awaiting trial in the district court at Ogden, Utah, Mr. Williams, counsel for the railroad company, “by himself in person, . . . went to Boise city, in the state of Idaho, . to secure from her (Mrs. Kennedy) a settlement without the knowledge or consent of her attorneys, and the said Williams, . . . through duress, deceit (and other improper influences therein mentioned), caused her, the said Margaret Kennedy, to enter into and execute a contract, by which she agreed to settle the same for the sum of $3500; and the said Williams asserted that he did not regard the feelings or legal interest of respondents, or any lawful right whatever which they might have in the premises.” The foregoing, as well as other matters of the same import pleaded in the answer, were read into the record by the attorneys representing the state in the disbarment proceedings as part of the examination in chief of the witness Williams, the attorney who represented the railroad company in the Kennedy Case.
Mr. Williams, in giving his testimony in the disbarment proceedings, admitted that he made a settlement with Mrs. *341Kennedy without conferring with her attorneys, but denied using improper influences to obtain the settlement, as alleged in the answer. He attempted to justify his actions and course of conduct in that regard pon the ground that they (Evans & Sogers) were making a practice of conducting personal injury cases in the courts of this state under contracts made with their clients similar to the contracts in the A. H. Nelson and Kennedy Cases, which he claimed were illegal and champertous. Regarding this matter, Mr. Williams testified in part as follows:
“I stated then, and I state now, that I went and attempted to settle the case with Mrs. Kennedy for the reason that previous to that we had a case tried in which the champer-tous contract that has been introduced in evidence here was disclosed in that case. . . . The view I took of their position was that they were not entitled to that consideration which I thought members of the profession were ordinarily entitled to receive, and which I was disposed to extend.”
The settlement referred to was afterwards repudiated by Mrs. Kennedy, and the money received in payment of her claim was returned to the railroad company. A trial was had, and a judgment was rendered in favor of the plaintiffs in the sum of $7085. The case was appealed to this court and the judgment affirmed. (18 Utah, 325, 54 Pac. 988.)
It will thus be observed that the settlement was obtained for less than half of the amount ultimately recovered by the plaintiffs in the action. Conceding, for the sake of the argument, that Evans & Rogers, in making their contract with the widow and children of Patrick Kennedy, violated the strict letter of the law, it nevertheless, under the circumstances, was a mere technical rather than a substantial infraction. They did not, in either the Nelson Case or in the Kennedy Case, solicit the business. On the contrary, the printed records of those cases, which are on file in this court, show that the plaintiffs in each case sought and obtained the services of Evans & Rogers. In neither of the cases was there any officious intermeddling by Evans *342& Rogers, or either of them, such as the law and the ethics of the legal profession denounce. While settlements of pending cases, made with the clients of opposing counsel in the manner and under the circumstances that counsel for the railroad company procured a settlement with Mrs. Kennedy in the case mentioned;, may not be in violation of law, nor in contravention of 'any principle or rule of public policy, they nevertheless are not to be commended. (Potter v. Ajax Min. Co., supra.)
In Archer on Ethical Obligations of the Lawyer (page 136), the author says:
“A person who has engaged a lawyer to look after his interests in a given case places the entire matter in his charge. He engages him because he is learned in the law and can protect his clients’ rights. It is the right of the client to have all persons representing adverse interests go to the attorney and negotiate with him, rather than try to take advantage of his own lack of technical knowledge of his rights.”
The author also quotes with approval canon 9 of the American Bar Association’s Code of Ethics, which is as follows:
“A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”
In the trial of the cases mentioned, and others of like character, brought by Evans & Rogers, in their capacity of attorneys, in which Mr. Williams represented the defendants, much ill feeling was engendered between them. Evans & Rogers were severely criticised by Mr. Williams because of the alleged champertous character of the contracts under which they prosecuted this class of cases; and, on the other hand1, Evans & Rogers characterized the' conduct of Mr. Williams, in importuning their clients to settle pending cases against the railroad company without first consulting them, as unprofessional.
*343I think it may be fairly inferred from the many heated discussions that took place between them in the trial of this class of cases, as shown by the printed records thereof on file in this, court, in which bitter personalities were indulged in between them, that the disbarment proceedings were the outgrowth of this ill, and I might add bitter, feeling existing between them. And I think it may be fairly said that, were it not for the feelings of resentment entertained towards Evans & Rogers by Mr. Williams, and Thomas Nelson’s desire for “revenge,” the proceedings would never have been instituted. While these matters brought out on the hearing before the referee concerning the conduct and method of counsel in conducting or defending, as the case might be, this class of cases can have no possible bearing on the question of the jurisdiction of this court to malee the order and render the judgment complained of, they nevertheless tend1 to explain and to account for, at least to some extent, the action of Mr. Williams and Thomas Nelson in instituting the disbarment. And since these proceedings involved ethical as well as legal questions, I have felt constrained to refer to these matters.