Griffin v. Colver. plaintiff was allowed to recover the profits which he would have made had he been permitted to fulfill his contract. This was in analogy to that class of cases where a party is allowed to recover the profits of a good bargain in the purchase of a chattel which the other party refuses to deliver. He is allowed to recover the market value over and above the agreed price, as the legitimate fruit of his contract. The case of Blanchard v. Ely, (21 Wend. 342,) it seems to me, is decisive of the case at bar. The head note, which is sustained by the case, is as follows: "In an action for the recovery of the stipulated price for the building of a steamboat, the plaintiff is entitled to recover the full amount, without any deduction by way of recoupment of damages to the defendant in consequence of loss sustained by him for the loss of trips, and the profits resulting therefrom, occasioned by defects in the boat or its machinery. The defendant in such case is, however, entitled to an allowance for moneys necessarily expended by him in supplying defects in the vessel or its machinery, &c. The courts of common law seem inclined to adopt the rule of the civil law in respect to damages for breach of contract relating to personal property, which is, that the party entitled to claim performance may claim damages for the non-performance in respect to the particular thing, the object of the contract; but not such as may have been accidentally occasioned thereby in respect to his other affairs, &c." In the case at bar, the use of the defendant's machinery, &c. may, upon the question of damages, be regarded as the object of the contract and within the legal contemplation of the parties, but certainly not the gains and profits of the general business of the defendants connected with that machinery. Such profits are no more allowable than the loss of trips and the profits therefrom, of the running of the steamboat, in Blanchard v. Ely. The case of Davis v. Talcott, (14 Barb. 611,) seems to sustain the defendants in claiming the damages which they sought to recoup on the trial. That case was similar to this in its Griffin v. Colver. facts. The action was to recover damages for the defective execution of a contract to construct and put up machinery in a flouring mill. It was held that the plaintiff was entitled to recover, as one item of damage, "such sum as the mill would have earned during the time it was necessarily delayed in consequence of the breaking or defect in the machinery; taking the ordinary earnings of the mill, after deducting from the gross earnings the expenses of running the same, as the net profits." This decision was made by a divided court, one member dissenting, and having examined the authorities cited, I think they do not warrant the decision made. I have already referred to most of them. The case of Dewint v. Wiltse, (9 Wendell, 325,) cited as authority, establishes a liberal rule of damages. It is to be observed that the opinion of the court is not published; the reporter's note is simply given, with a brief statement of facts. The grounds of the decision are not stated. It may be that the loss of the rent of the tavern, store, &c. was a subject of damage expressly stipulated for in the contract of the parties, or it may have been recovered on the ground suggested by Justice Cowen in Blanchard v. Ely, (supra.) He says: "The case of Dewint v. Wiltse must, I think, have been regarded by this court as a fraudulent breach of a covenant to keep a ferry in repair, which materially benefited- the plaintiff's tavern." It may be questionable whether even a fraudulent breach could enhance the damages beyond those which are the subject of the contract itself and directly arising from it. However that may be, or whatever may have been the ground of the decision in Dewint v. Wiltse, I think it should not be held authority to allow the recovery of damages beyond those connected with the particular thing which is the object of the contract. I cannot therefore concur in the decision of Davis v. Talcott. It follows that the defendants were not entitled to recoup the loss of their anticipated profits in running their planing mills and machinery. These profits are not immediately and necessarily connected with the object of the contract. They are but the result or consequence of the derangement and cessation of Waters v. Whittemore. the defendants' general business; too speculative, uncertain and remote to be the subject of legal damage. The judgment and report of the referee must therefore be affirmed. [ONEIDA GENERAL TERM, January 1, 1855. Hubbard, Pratt and Bacon, Justices.] WATERS VS. WHITTEMOre. An action brought in a justice's court, against an attorney, to recover back money which it is claimed that he has taken from the plaintiff by charging illegal fees in bills of costs collected of him, is not to be regarded as an action of assumpsit based upon an implied promise. It therefore is not an action for money due upon a contract, express or implied, within the meaning of the first section of the act of April 26, 1831, and consequently the provision of the act abolishing imprisonment for debt arising upon contract does not apply to the case, and a justice of the peace has no jurisdiction to issue a short summons, against a defendant residing out of the county. But if such an action were to be regarded as based upon an implied promise, it is exempted from the operation of the provisions of the act of April 26, 1831, allowing a short summons, by the 2d and 30th sections of that act, on the ground that an attorney is a public officer, and that it is official misconduct in him to charge and receive more fees for any service than the statute allows. A short summons cannot be issued, in any case, against a defendant who is a non-resident of the county, except when the plaintiff's demand arises on contract, express or implied. THIS HIS action was commenced before a justice of Chenango county, against the defendant, who was a resident of Madison county, to recover back the sum of about forty dollars which it was claimed that the defendant, who was an attorney, had taken from the plaintiff, by charging illegal fees in certain bills of costs which he had collected of the plaintiff. The gravamen of the complaint was in tort. The defendant, on the return day of the summons, raised the objection to the process Waters v. Whittemore. that a short summons could not issue in such a case, and asked to have the suit dismissed for that cause. This was refused, and the plaintiff recovered a judgment for the amount claimed, in the justice's court, which was affirmed, on appeal, by the county court. From the judgment of the county court the defendant appealed to this court. B. F. Rexford, for the plaintiff. J. P. Whittemore, defendant in person. MASON, J. The 5th section of title 4, of art. 3d, of part 3d, of ch. 10th of the revised statutes, prohibits an attorney from receiving any other or greater fee or reward for any service than shall be allowed by law; and the 7th section of the same title makes the receiving of such fees a misdemeanor, and subjects the person guilty thereof to treble damages. (2 R. S. 651, § 7.) I am of opinion, after a careful examination of the pleadings in this case, that this is not to be regarded as an action of assumpsit based upon an implied promise; and if so, then certainly it is not an action for money due upon a contract, express or implied, within the meaning of the first section of the act of April 26, 1831, and consequently the provision of the act abolishing imprisonment for debt arising upon contract does not apply to the case, and therefore the justice had no jurisdiction to issue a short summons. But if we hold it to be an action based upon an implied promise, then I am of opinion that the case is excepted from the provisions of the act of April 26, 1831, allowing a short summons. Sections 2 and 30 of that act seem very clearly to except this case. The 2d section excepts from the provisions of the act, non-residents of the state, &c., and also actions for fines or penalties, or on promises to marry, or for moneys collected by any public officer, or for any neglect or misconduct in officers or in any professional employment; and the 30th section provides that no execution against the body shall be issued by any justice of the peace, Waters v. Whittemore. upon a judgment rendered by him, for the recovering of money collected by a public officer, or for official misconduct or neglect of duty, or damages for misconduct or neglect in any professional employment. (Laws of 1831, p. 403, § 30.) And the 31st section prohibits any warrant from being issued in any case where, by the provisions of the 30th section, an execution cannot go against the body. Then comes 33, under which the summons in this case was issued, which reads as follows: "Whenever by the provisions of the 30th section no warrant can issue, and the defendant shall reside out of the county, he shall be proceeded against by summons or attachment, returnable not less than two nor more than four days from the date thereof," &c. (Laws of 1831, p, 403, 33.) It will be seen, therefore, that the short summons cannot be issued in any case where a warrant could go under the 30th section of the act. Now it should be borne in mind that attorneys and solicitors. are public officers. Lord Hardwicke said in the case of Walmsley v. Booth, (Barn. Ch. R. 478,) that attorneys and solicitors are to be considered as public officers; and the same is said by Chancellor Walworth in the case of Merritt v. Lambert, (10 Paige, 356.) The same was held in the court of dernier resort in this state in the case of Wallis v. Loubat, (2 Denio, 607.) Now it is misconduct in an attorney to charge and receive more fees for any service rendered than the statute allows; especially when the statute makes such act an indictable offense, as we have seen it does, and the attorney must be regarded as receiving his fees officially, as much so as a sheriff or any other officer. And if so, then the act of an attorney, in receiving illegal fees, is one of official misconduct; and I apprehend that it is because attorneys and solicitors are regarded as officers of the court, that our courts have been in the habit of granting relief against them by summary motion, treating the act as one of official misconduct in an officer of the court, and therefore to be redressed in a summary manner. But again, it should be borne in mind that prior to the act of April 26, 1831, the summons could never go against a non-resident of the county. It was expressly provided by the 13th |