Kikuchi

(after stating the facts as above).

Error is assigned to the order of the court overruling the demurrer, and to the instructions of the court to the jury whereby they were told that the contract contemplated that the defendant in error, if the case went to the Circuit Court of Appeals, should represent the plaintiff in error in that court.

The first clause of the agreement, whereby the defendant in error was retained as proctor and attorney “in all matters arising out of the alleged law violation,” evidently refers only to the various services that were to be rendered in the District Court which were thereafter in the *59 agreement specified, and not to services in an appellate court in case of an appeal. Kamm v. Stark, 1 Sawy. 547 , Fed.Cas.No.7,604; Berthold v. Fox, 21 Minn. 51 ; Hillegass v. Bender, 78 Ind. 225 . It is not disputed that for all those services the defendant in error has received the compensation which was agreed upon. His right to recover in the present action depends upon the construction to be placed upon the final clause, which is: “If the forfeiture case goes to the appellate courts said attorney is to receive such further compensation as may be agreed on…

(dissenting).

The record shows that the plaintiff in error, who was defendant in the court below, was the owner of a Japanese sealing schooner known as Tokai Maru, of which one M. Numasaki was master, which schooner was seized by a United States revenue cutter in the summer of 1910 for an alleged violation of the Alien Fishing Law of the United States. The captain, officers, and crew of the schooner, consisting of 38 persons in all, had been found guilty by the magistrate at Unalaska of violation of the law and sentenced to pay a fine of $500 each, which, under the statute, in the event of nonpayment, they were required to serve out ,in prison at the rate of $2 a day. In those circumstances the captain of the schooner employed the defendant in error, who was plaintiff in the court below, to render professional services; the contract between them, which was in writing, being set out in the opinion of the court.

Prior to the time of the making of the contract, proceedings had been instituted for the forfeiture of the schooner, in which proceedings a default judgment had been entered for the government, and after the making of the contract Ritchie sought and procured an order of…