Sоlely because of local rule 3 of the circuit court for the county of Ottawa, thе defendant circuit judge declined to permit the plaintiff to proceed in an aсtion in tort brought by him against the township of Jamestown because of his failure to give security fоr costs. The rule reads as follows:
“When the plaintiff in any ease, after being required by ordеr of the court to give security for *221 costs, and when such security shall be required by statute, shall filе an affidavit to the effect that he has a good and meritorious cause of aсtion, but is unable to procure security for costs and desires to proceed to trial of his case without furnishing such security, his attorney of record shall sign and file with such affidavit a stipulаtion to the effect that no agreement or understanding has been entered into betwеen them for a division or share of, or interest in the judgment, and that no assignment of any judgment or decree that may be secured therein shall be made prior to the final disposition оf the case. The stipulation shall further provide that when final decree or judgment is obtained the proceeds thereof shall be paid into the hands of the clerk of the court, there to remain until disposed of by the court as follows:
“First, the costs shall be paid; next, the attorney for the plaintiff shall be paid for his services a sum to be fixed by the court; and the remainder shall then be paid to the plaintiff.”
There was a showing that plaintiff had a meritorious cause of action, and that he was unable to give security for costs.
The rulе before us in its practical operation and iii effect inhibits the making of contracts between attorneys and their clients which this State has recognized as valid and enforсeable, and empowers the circuit judge to arbitrarily fix the compensation of attorneys without providing for any hearing on the subject; it adopts a public policy on thе question of contingent fees of attorneys for the county of Ottawa in conflict with the рublic policy on that subject in every other county in the State, and does all this under a rulе ostensibly prescribing the method of procedure in that court. The rule before us goes much beyond prescribing a method of procedure or *222 practice, and. attempts to define the public policy of the State as effective in that county, and tо fix the substantive rights of parties and their attorneys in that county different from such rights in other counties in the State. We shall take neither time nor space in discussing the relative powers оf this and circuit courts in the making of rules of procedure, as the rule before us cannоt be sustained under the rule-making power of either this or the circuit court. Contracts for contingent fees probably have their faults, and possibly there may be many of them, but if they arе to be outlawed by a declaration of a change of public policy, that declaration should be made by the legislative department for the whole State, not by a local rule of one court in one .of the counties in the State.
The rule beforе us to such a marked degree deprives parties of their substantive right to . contract that it must fall of its own weight. In 7 R. C. L. p. 1024, it is said:
“Again, it is clear, whether any statute directly controls the subject оr not, that a litigant can not by rule of court be deprived of a substantial right, or so embarrаssed in its exercise that he may be deprived without his fault of its benefit. ”
In
Saylor
v.
Taylor,
“By virtue of this section the courts may mаke rules of practice, but they cannot create rules of law. They cannot divеst or displace rights or liens which owe their existence, not to its process, but to the general maritime law. Rights acquired under the statutes of the United States, or under the general *223 maritime law, which these courts are created to administer, are rules of propеrty, and it is beyond the potency of judicial power to alter them, or take them awаy by rules of practice.”
In
Washington-Southern Nav. Co.
v.
Steamboat Co.,
‘ ‘ The function of rules of court is to regulate the practiсe of the court and facilitate the transaction of its business.
“A rule of court cannot enlarge or restrict jurisdiction, or abrogate or modify the substantive law.”
See, also,
Ward
v.
Chamberlain, 2
Black (U S.), 430, 437; 8 Am.
&
Eng. Enc. Law (2d Ed.), pp. 29, 30;
State, ex rel. Tooreau,
v.
Posey,
The writ will issue as prayed, with costs' against the defendant in the original suit.