Сн. 31. Boyter v. Dodsworth. § 9. Assumpsit for money had and received, to recover back fees received by the deft. to the plt's. use as belfry-sex6 D. & E. 681, ton &c., an office for life. Held, he cannot recover, unless the fees demanded be known and accustomed fees annexed to the office, and such as the legal officer himself can recover in a court of law from persons bound by law to pay such fees. Hence, the remedy extends not to such fees as persons may give or not, as they please, mere gratuities. And he that performs the services, officer or not, for which the gratuity is given, is entitled to it on principles of natural justice. The gratuity in this case was received for shewing the church to strangers. The grant permitted the plt. to shew it, but this is no grant of an office. Where an usher recovered his fees, see 2 Stra. 747; Salk. 78; Duppa v. Gerard. 2 Stra. 1027, Bulstrode v. Gilburn. 7 Johns. R. 35, 36, M'Intyre v. Trumbull.6 Bac. Abr. 156. 2 W. Bl. 1181. Raines v. Nel son. Lofft 433.- 10. If fees be created anew after deputies are appointed, not they, but the principal is entitled to them. And if the plt. have a remedy upon a covenant to account, he cannot bring assumpsit for monies had and received, for he has a remedy of a higher nature; and if the deputy's duties are increased, it is only a reason for a new contract. 11. In levying an execution the deputy took more fees than the law allowed; held, an action lay against the sheriff for this act of his deputy; nor was it necessary to shew that the sheriff recognised the act of his deputy, 3 Wils. 399; 1 D. & E. 148, 159. 12. The sheriff is not held to pay the costs if he acts bona fide, and requests the court's assistance when he tries the question of the deft's. bankruptcy between his assignees, and the plt. is liable for his deputy's breach of a penal statute, 11 East 25, Sturmy v. Smith. 13. The officer is not entitled to poundage till the goods are sold, nor can he detain for fees, 1 Ld. Raym. 4; nor is 1 Salk. 330. the sheriff entitled to fees of poundage if the judgment be irregular; see Earl v. Plummer, and Peacock v. Harris; nor can a deputy sheriff refuse to execute process till his fees are paid. 2 D. & E. § 14. If it appear by the sheriff's return of an execution 148, 159, more fees have been taken for the levy than allowed by staWoodgate v. Knatchbull.tute, 29 El. c. 4, the sheriff is liable to an action on that statute for treble damages at the suit of the party grieved; see 2 W. BI, 832. Dougl. 40. 6 Johns. R. 125, Woods v. Gibson. 5 Johns. R. 15. The sheriff summoned a jury for the Circuit Court, but was out of office before the return of the venire. Held, he was entitled to fees for summoning the jury, but not for the return of the venire. § 16. The attorney is liable for the sheriff's poundage on a 252, Adams v. ca. sa. on serving the execution, and without resorting to the Hopkins. party;-may be a good rule, if the attorney employ the sheriff, CH. 31. but quære, if the party himself employ him. 17. Honorary fees. The origin of them, so far as our accounts extend, was among the ancient Romans, in some cases derived by them from the Greeks. Among the Romans they originated in patronage, in the intimate and peculiar connexion there was between patron and client, where in a popular government so much depended on eloquence and good pleading. Each patron had his clients, whom he defended, and whose causes he plead on every occasion, and as in the nature of things there could be no uniform fees or reward regulated by law or otherwise, the recompense the client made to his patron was a matter of honour, regulated not by law, but by the feelings and confidence, the ties of friendship and liberal sentiments, which naturally existed between persons defended and their defenders. This connexion between patron and client was also political, and gave the great men in Rome, especially the able orators and pleaders, an influence and standing among the common people, of which now we can have no just conceptions. Some of the clients were immensely rich, and ardently sought to obtain or to preserve the good opinion of their fellow-citizens in a popular government, and their success very much depended on the exertions of their patrons. Riches, especially in the provinces, were acquired in a manner that often caused their possessors to be vigorously attacked and impeached, and not unfrequently put on their trials to defend them and their characters, and sometimes even their lives, where every thing depended on the most powerful eloquence and pleadings. Hence, the enormous honorary fees given; such as authorized Cicero to boast, that he received more than a million of dollars, our money, from his clients in presents and legacies as honorary returns for his pleadings for them, and so as to Lucullus Atticus and others. Middleton's Life of Cicero, 2 vol. p. 514. § 18. The Roman laws at times interposed in regard to lawyers and their fees. For a long time, and as late as the time of Cicero, only one was allowed to argue on each side. This circumstance led to immense honorary fees, or presents, or legacies, in order to retain or secure the very first pleaders in great causes. For a long time the patroni (defensores) received no fees as such in particular causes, but all in presents and legacies. § 19. In Pliny the younger's time, two pleaders were allowed on each side in cases of impeachments, and they received fees in his time. And the younger attornies were employed by the eminent counsel in their causes in the usual order of the business of the bar. But some emperors after Pliny's VOL I. 79 CH. 31. time strictly forbid fees to be taken. This prohibition led of course to presents and legacies from clients to counsel, espepecially where life, character, or great interests were in danDig. 50, 13, ger. Justinian limited the premium honorarium, not to exceed a hundred aurei for each cause; but if nothing was promised or paid, a reasonable compensation was recoverable. The office of counsel being viewed as public, a counsellor was compellable to undertake and act in a party's cause. 8. 12.-Cod. 2, 6, 7.-Cod. 1, 16, 7.— Dig. 3, 1, 4. Cro. El. 59, 3 Bl. Com. 20. At the Roman bar and in conducting causes, there were several grades of persons naturally employed. The counsel were patroni or defensores as already mentioned. They were the orators who argued the causes: 2. Advocati, that is, assistant counsel: 3. Procuratores, proctors who acted for clients that were absent, and managed their business for them under special powers: 4. There were attornies or agents, gestores negotiorum, appointed generally: 5. Also clients had on the spot their cognitores to help them manage their affairs. It is not to be understood the inferior or even middle grades thus employed in conducting suits, prosecutions, and impeachments, received only honorary compensation. Far otherwise, as in modern times, they received the quid pro quo or reasonable reward, as ascertained by law or by custom, and only eminent orators and pleaders generally depended on the honorary rewards as presents and legacies, and it is doubtful if even these did, in common and ordinary business on which the law or usage could conveniently set a price. In Rome, as in other free and rich countries, there was one common reason (among others) for honorary fees or compensation. No law or custom could fix a uniform standard of compensation, so extremely various were the circumstances of great causes and of counsel and clients concerned in them. Thus honorary fees in certain cases very naturally grew out of litigation and the connexions above stated. This natural distinction between honorary and other fees has been, in substance, continued down in Europe to the present time, and in a considerable degree in this country, with an exception as to lega cies and political considerations. In Chorley v. Bolcot the plt's. counsel viewed the Roman practice as the foundation of the English. 21. In this case of assumpsit three judges said that it was adjudged in the exchequer, that a promise of £10 in consideration of counsel given to one, was good, though the counsel had been given before. But in 2 Leon 111, it is said, fees to counsel are now considered as quiddam honorarium; a present, not a payment; not recoverable by law, and if paid, not recoverable back. The ancient Roman orators had their clients, and practised gratis, for honour merely; at most, to gain influence, "and so likewise it is established with us," (cites Cн. 31. Davis, Pref. 22, and 1 Ch. R. 38,)" that a counsel can maintain no action for his fees; which are given not as locatio vel conductio, but as quiddam honorarium; not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation," cites Davis 23; and A. D. 47, by a decree of the Roman Senate, advocates were allowed Tacitus' Antheir honorarium, never to exceed 10,000 sesterces, about nals, Lib. 11, $355; this decree was passed in consequence of extravagant fees demanded. Tacitus says Samius had retained, Suillius, with a fee of ten thousand crowns; and other very extravagant fees were complained of. See the arguments in the senate, for and againts, 2 Mur. Tacit. p. 9, 10, 11; by these it appears that some few rich orators employed their eloquence for honour and influence only, among the Romans. s. 1, &c. Berkenhead v. Fanshaw. 22. Assumpsit by an attorney for fees and disbursements 1 Salk. 86, in defending suits in an inferior court, also, in B. R. and he recovered. Deft. pleaded 3 J. 1, ch. 7, directing attornies to give bills to their clients one month before they sue them. Held, this act did not extend to inferior courts, nor to any, when a special promise is laid, or there is an insimul сотриtassit. As neither appears in this case, the attorney must have recovered on an implied promise, at common law. So Salk. 89, is every day's practice in this state. So Grigg recovered on Grigg's case, the same principle, and the court refused to refer an attorney's bill for business done in one court, to a master in another. The 2 Geo. II. c. 24, as to giving bills, does not extend to conveyancing, but he recovers as above. Bull. N. P. 145. and Salk. 596 Fees &c. A. Fees are considered certain perquisites allowed to officers 2 Bac. Abr. in the administration of justice, as a recompense for their ser- Cites Co. L. vices, ascertained by statute or by ancient usage: paid by the 368.-2 Inst. king anciently. This rule held only to his officers in the ad- 176, 208, 209. ministration of justice. Fees A.-21 § 23. All fees allowed by statute become established fees, 2 Bac. Abr. and officers actions for them. So are all H. VII. 17.may have proper that have been allowed by courts of justice to their officers, Co. L. 368. as a recompense for their labour and attendance. See Debt, ch. 144, a. 15. 24. It clearly is extortion for any officer to take more for his fees than the law allows; or before his fee is due, that is, before the service is done by him; and for extortion he may be indicted. The officer must perform the service directed to be done by his precept, and then claim his fee. 10 Co. 102. a. 2 Bac. Abr. Fees. 25. Pilot's contract for extra fees, how void. In New- 1 Caines' R. York a branch pilot contracted to assist a vessel in distress, 104, Callaghan v. Halfor a certain extraordinary compensation. Held void, as the fet. statute of the state made it his duty to assist in such cases for CH. 31. his legal fees: further the court thought that such contracts might lead to oppressions. This case establishes a principle for many cases. 2 Johns. R. 193.-See ch. 49, s. 32. 2 Day's Ca. 528, DeForest v. Brainerd. 1 Caines' R. 13, Gilbert v. Frazier. Id. 102, Hildreth v. Ellice. 1 Caines' R. 195, per Livingston J. 9 Johns. R. Ousterhout v. 9 Johns. R. 328. 26. Promise by an officer agninst law, is void; as where a constable, having an execution against the deft. issued from a justice's court, promised him, if he would deliver property as security, not to sell it under thirty days; this promise was contrary to the duty of the officer, so against law and void. 27. A contract between a sheriff and his deputy to allow yearly a stated sum to the sheriff, in consideration of the appointment, is legal and operative. 28. Fees on levying a fine cannot be collected of the party; but must be charged by the sheriff in his account. § 29. If he levy on property he is entitled to his poundage on the full sum endorsed, if so much in value be levied on, though he do not sell, by reason of an amicable settlement made by the parties. 30. But he loses his fees on a writ against the person, if countermanded before served, though the officer may have been several times to the deft's. house to arrest him. 31. How the officer for his fees may look to the attorney in the action. This he may do, though he may also look to the client in the first instance, and if he elect to sue the attorney without a demand on the client, especially after five years elapsed, and no such demand made, there is a waiver of his right to call on the client. 32. The sheriff has his reasonable fees and expenses for bringing up a former sheriff, on an attachment in not returning process. CHAPTER XXXII. See Deceits, and Agree ments, Ch. 9, a. 20, &c. Statutes &c. ASSUMPSIT, FRAUDS, THIS ACTION HOW AFFECTED BY FRAUD. ART. 1. General principles. This action of assumpsit can never be defeated by fraud in defence. § 1. This subject has been considered already in some measure, and is here introduced in order to notice a few genas to frauds; eral principles, material in this, as in many other actions; as as to 2 H.III. the plt's. action may often be founded on a contract tainted with fraud, or said to be so. It is material to see how fraud ancient ones |