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Stow agt. Hamlin and others, &c.

The justice allowed the plaintiff nothing in the appeals, and gave him judgment for the $5 only. The county court reversed the judgment of the justice, on the ground that the plaintiff was entitled to recover something for his retainer in the suits appealed; and that it was the duty of the justice to fix and determiñe the value, in the absence of all proof on the subject of value.

W. S. Stow, in person.
H. V. HOWLAND, for defendants.

By the court-Johnson, Justice. The plaintiff recovered before the justice for all the services proved to have been actually rendered and not paid for.

The only question therefore is, whether he was entitled to recover anything upon proof merely, that he was retained in the suits appealed to the county court, without proof of any agreement in regard to compensation, or any services in fact rendered. The fee-bill is abolished, and the measure of the compensation of an attorney or counsel is to be governed by the express or implied agreement between him and his client. Implied agreements between attorney and client stand upon the same footing with the like agreements between other parties.

Evidence that a person was employed to render service, does not prove that the service stipulated for has been rendered. The party claiming compensation must go further, and show the extent of his performance and its value. The law will not presume, from mere proof of the undertaking, that the party has performed any valuable service under it. It is urged by the plaintiff, that in the absence of an express agreement, the court or jury should allow to the attorney what the statute gives to a party as his compensation. But no such agreement can be implied in behalf of an attorney or counsellor. The statute gives certain sums to the prevailing party only, for his compensation; and if such were the rule, the attorney of a defeated party could recover nothing on an implied agreement. Where there is no express agreement as to compensation, the

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attorney, in order to recover against his client, must now prove generally what services he has rendered, and what they are reasonably worth.

Judgment of the county court reversed, and that of justices' affirmed.


Reuben W. Hawes agt. ANTHONY C. Hoyt.

Although it is said that the Code is a nursing mother, and amends or overlooks

formal irregularities, it does so only “in furtherance of justice." A defendant who has not pleaded in time, ought not to be allowed to say to the

plaintiff, you have not sued me in time. In other words, to be allowed as matter of grace to his laches, to interpose the statute of limitations to the plaintiff's demand, embraced in a regular judgment, by default.

New-York Special Term, Dec., 1853.

Motion by defendant to set aside judgment and subsequent proceedings, and for perinission to defend, &c.

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Roosevelt, Justice. It appears to me very clear, that the debt on which this action was brought is justly due. It arose out of a sale of goods made directly by the plaintiff to the defendant, and promissory notes given thereon directly by the defendant to the plaintiff. Copies of the notes are set forth in the complaint; and although the defendant swears he has no knowledge of the making of said notes," it is obvious that his ignorance, if it be genuine, is quite voluntary, and that he has no particular desire to be enlightened. His belief, although in such a case admissible, and even necessary, he is careful to withhold. The conclusion is irresistible, that the notes are

Hawes agt. Hoyt.

genuine—and there is no suggestion that they have ever been paid.

The defendant, however, insists further, that, if due, they are barred by lapse of time; and he has put in, he says, an answer to that effect, against which two objections are raised. First, it came too late. The attorney, it is true, swears he mailed it in season; but the post-mark and the post-master show, I think, that he is mistaken. Secondly, the answer is entitled in another cause. Robert and Reuben are totally different names. It is not a case of the same sounds differently spelt-such as Robert with two b's or two t's but Robert, a well-known name, instead of Reuben, a name equally well known, but altogether different.

The Code, it is said, is a nursing mother, and amends or overlooks such formal irregularities.

It does so, but only “in furtherance of justice.” Would justice be furthered by allowing a plea of the statute of limitations in such a case, by permitting a party, who has not pleaded in time, to say to his adversary, you have not sued me in time? Can the defendant, as matter of grace, ask indulgence to his laches, merely to enable him to deny the like indulgence to the laches of his adversary ? The courts, in such cases, have properly enforced a sort of set-off, neutralizing the default of the one by the default of the other, and refusing to waive the negligence of the defendant, unless on his part he would stipulate to waive that of the plaintiff.

Being satisfied, therefore, of the undoubted justice of the plaintiff's debt, and of the regularity of the judgment entered upon it, I must deny the defendant's motion to vacate the proceeding; with liberty, however, to take a reference, should he be so advised, at his own expense, to inquire into the genuineness of the notes, and whether any payments have been made upon them; and, on the coming in of the report of the referee, to make such motion as he may deem proper.

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Judgments by confession, drawn up by the plaintiff, when the defendant has no

adviser, must be carefully watched by the court, that they be not used to op

press unwary defendants. Whether affidavits in reference to the credibility of a party, can be received on

a motion is questionable. If ever received, it should be with an opportunity

to produce counter-affidavits. The execution in this case was issued against the defendant immediately after

the confession of judgment. The defendant said the plaintiff was to give him a written stipulation to wait three years before issuing it. The plaintiff denied this. Held, that the evidence was overwhelming in favor of the defend

Execution set aside, with $10 costs.


New-York Special Term, Sept., 1854.
Motion to set aside execution for irregularity.

for motion.

MITCHELL, Justice. On the 2d of August, instant, the defendant confessed judgment to the plaintiff for about $800, and on the next day, the plaintiff issued execution, and levied on the defendant's goods. The defendant moves to set aside the execution, alleging that the judgment was confessed on a stipulation that execution should be stayed for three years, if the interest should be paid. This agreement the plaintiff denies. About $600 of the debt was secured by a mortgage, which was under foreclosure, and as to which there was a controversy, and the cause was at issue-not yet reached on the calendar. The rest of the debt was principally for rent due. The defendant thus had the means of delaying the plaintiff as to three-fourths of the debt. Some motive must have been presented to him to abandon this advantage, and confess a litigated claim to the plaintiff.

Merritt agt. Baker.

The plaintiff states none, and would make out that, at his request, and without any benefit to the defendant, the defendant, as soon as called on, agreed to confess judgment for the disputed mortgage debt, and the unliquidated demand for rent. This is hardly credible, while the defendant's statement is altogether probable, and according to the common course of such transactions.

The defendant also states all the particulars of the manner in which the plaintiff made the promise; of his repeating it at the commissioner's office; of his excuse for not complying with it, (because it was late)—when leaving that office; of the defendant calling on him again at his house on the same evening, and the repetition there of the promise that the stipulation should be given the next day punctually at 9 A. M.; of the defendant's attendance punctually at that time, and the plaintiff's omission then to attend; of the defendant's calling at the office of the plaintiff's attorney, to find the plaintiff and get the stipulation; and of his return there some few hours afterwards, when, to his surprise, he had found that the sheriff had levied on his goods, and his prompt appeal to the plaintiff's counsel to go to the plaintiff and get the matter righted—no one particular of which is denied. The plaintiff contenting himself with the general denial, that he ever agreed to stipulate to wait three years. This also makes the plaintiff's statement less reliable. The declarations of the defendant, as to the agreement, made promptly to the plaintiff's counsel, and within less than thirtysix hours after the agreement was made, (although not such evidence as would be admissible before a jury,) are entitled to weight where the parties themselves are witnesses, and the court is to judge of the whole matter.

Judgments by confession, drawn up by the plaintiff, when the defendant has no adviser, must be carefully watched by the court, that they be not used to oppress unwary defendants.

The judgment, as well as the execution, may be set aside, if the plaintiff so elects: at all events, the execution must be set aside, with $10 costs, and the plaintiff to pay the sheriff's fees;

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