
    Judson against Gray.
    A rule established by a course of adjudications, which is in conflict with legal principles, should not be extended by analogy.
    Seferees do not belong to the class of officers to whom attorneys and solicitors have been held personally responsible for services rendered in the suit; and therefore held, that the solicitor for the complainant in a chancery suit was not personally liable to a referee, appointed by the court under the judiciary act of 1847, to take and state an account in the cause, for his fees.
    Prior to October, 1847, one Absalom Calkins commenced a suit in the court of chancery against Asa M. Calkins and others, to enforce an alleged right of redemption; Gray, the present defendant, being solicitor for the complainant. The suit was brought to a hearing in the supreme court, upon pleadings and proofs, in October, 1847, and in March, 1848, the court made a decretal order, declaring that Calkins was entitled to redeem, subject to an account to be taken between the parties; and thereupon the plaintiff, Judson, was, by the consent of the counsel on both sides, appointed referee to take and state the account. The defendant, Gray, as the solicitor of Calkins, notified the plaintiff of his appointment, and requested him to attend, at a time and place named by the defendant, to take the account. The plaintiff attended, pursuant to this request. He was occupied several days in taking the testimony, about an equal amount being taken for each party, and finally reported the sum of $775.84 as due from the complainant.
    After taking the account, the plaintiff, Judson, omitted to file his report; but for what reason does not appear. The defendant made a motion in the supreme court, and obtained an order requiring the referee to file his report, which was done. During the pendency, and before the hearing of the chancery suit, the complainant Calkins filed' a bond in the penalty of $500, as security- to' the defendants in the chancery suit, for coats; but it did not appear whether this bond was given on account of the non-residence of the plaintiff or not. It appeared upon the trial of this suit, that Gray, the defendant, had no money in his hands belonging to his client, Calkins.
    In 1849, the plaintiff, Judson, procured what purports to be a taxation of the items of his fees, including the whole in one bill, and charging therein for horse hire, stage fare, tavern expenses, &c., all of which was taxed and allowed, and amounted to $155.94. The present action was brought to recover the amount of this bill. It was tried before one of the justices of the supreme court, without a jury, at the Chenango circuit, and upon the foregoing facts judgment was obtained for the plaintiff, which upon appeal was affirmed at a general term in the sixth district. The defendant appealed to this court.
    
      N. Hill, Jr., for the appellant.
    
      First. The order of appointment was made under the judiciary act, and the plaintiff accepted it on the 10th of July, 1848. He was, therefore, in no sense a master in chancery, but a mere referee. (Const. of 1846, art. 14, § 8; Laws of 1847, p. 344, § 77; Laws of 1848, p. 567, §§ 4-6.) Second. The cases in this state which have held attorneys liable for the fees of sheriffs and other officers, are entirely anomalous, and should not be followed except in cases precisely similar. (See 5 John. 252; 5 Paige, 510.) 1. They violate the rule, that one acting in the character of a known agent is not liable, but only his principal. (See 5 John. 254, per Thompson, J.; Robbins v. Bridge, 3 M. & Wels. 114, 118, 119; Anonymous, 1 Mod. 209; Wires v. Briggs, 5 Verm. R. 101, 2; Hartop v. Juckes, 1 Maule & Selw. 709 ; Maybery v. Mansfield, 58 Eng. Com. Law R. 753; 4 Cowen, 260, 263, Woodworth, J.) 2. They assume that the law raises two distinct implied promises, one by the known principal, and another by his agent. (See Ousterhout v. Day, 9 John. 114; Cowen’s Treat. 120, 1, 2d ed.) 3. They are contrary to every adjudged case, it is believed, in this country and England. (Robbins v. Bridge, 3 Mees. & Welsb. 114, 118, 119 ; Maybery v. Mansfield, 58 Eng. Com. Law R. 753; Hartop v. Juckes, 1 Maule 
      & Selw. 709; Hart v. White, 1 Holt's N. P. R. 376; Wires v. Briggs, 5 Verm. R. 101, 2; Maddox v. Cranch, 4 Har. & M’Hen. 343; Moore v. Porter, 13 Ser. & Rawle, 100; Sargent v. Pettibone, 1 Aiken' s Rep. 355; Preston v. Preston 1 Dougl. R. 292.) 4. If followed, they will result in holding the attorney liable for the fees not only, but the acts of all he is obliged to employ. (See Stone v. Cartwright, 6 Durnf. & East, 411; and see the cases last above cited.) Third. The present case is essentially different from those where our courts have held the attorney liable, and none of the assumed reasons for such liability exist here. (See 5 John. 252, 254, 5, Thompson, J.) 1. The plaintiff was not bound, like an officer, to undertake the duty, .but, like the attorney, could have refused until the party paid or secured his fees. (See Lamoreux v. Morris, 4 How. Pr. R. 245; Howell v. Kinney, 1 id. 105.)
    2. Nor is there evidence of any usage or practice for referees to charge their fees to one or both the attorneys, but the evidence is directly the other way. (2 R. S. 643, § 36; Howell v. Kinney, 1 How. Pr. R. 105; Lamoreux v. Morris, 4 id. 245.)
    3. If the plaintiff omitted to assert his claim in oppposition to the motion requiring him to report, that is no reason for making the attorney liable. (See 2 R. S. 643, § 36; 6 Eng. Law and Eq. R. 63.) 4. Nor should the attorney be 'made liable, even if the plaintiff asserted his claim and the court improperly overruled it. Fourth. No court has ever gone so far as to hold an attorney liable to those who act voluntarily, and who have more efficient means of securing their fees than he has. (Hartop v. Juckes, 1 Maule & Selw. 709; 1 Aik. R. 358, Hutchinson, J.; 6 Dowl. Pr. R. 145, Abinger, C. J.) Fifth. The courts have generally been averse to extending the liability of attorneys; but the court below, while professing to approve this principle, has extended the liability beyond all precedent. (See 6 Dowl. Pr. R. 145, 6, Abinger, C. J.)
    
    
      J. H. Reynolds, for the respondent.
    I. Sheriffs, clerks, masters and other officers of the court have the right to charge their fees to the attorney or solicitor of the party for whose benefit the services are performed, and recover the same from him. (Adams v. Hopkins, 5 John. 253; Trustees of Watertown v. Cowen, 5 Paige, 510; Ousterhout v. Day, 9 John. 114.) The same rule applies in this case. The plaintiff was a referee only to take and state the account; he was not a referee under the code to decide the cause; he performed the duties formerly done by a master.
    II. The complainant’s solicitor (the defendant in this suit) had the carriage of the decree only, and it could only be executed upon his motion; (Quackenbush v. Leonard, 10 Paige, 131;) and he did in fact take charge of the execution of the decree, notified the referee to attend for the stating of the account; and after the report, was made, by motion compelled the referee to file his report upon which he brought an appeal, and used the report for his own benefit, or for the benefit of his client.
    The nature of the bond given by the complainant shows that the complainant was a non-resident of the state; and this court will never force the plaintiff in this action to look to an irresponsible non-resident party, to whom no credit was given. (Trustees of Watertown v. Cowen, 5 Paige, 510, before cited.)
    
   Selden, J.,

delivered the opinion of the court.

It is a well settled rule of the common law, that where one person contracts as the agent of another, and the fact of his agency is known to the person with whom he contracts, the principal alone and not the agent is responsible. This rule is directly applicable to the case of attorney and client, and has been so applied whenever the question has arisen, except in the state of New-York. It was thus applied in England in the cases of Hartop v. Juckes, (1 Maule & Sel. 709; Robbins v. Bridge, (3 Mees. & Wels. 114;) and Maybery v. Mansfield, (9 Ad. & El. N. S. 58, Eng. Com. Law, 753 ;) in Vermont, in the cases of Sargent v. Pettibone, (1 Aikens, 155 ;) and Wires v. Briggs, (5 Verm. 101;) in Maryland, in'the case of Maddox v. Cranch, (4 Har. & McHen. 343;) in Pennsylvania, in Morse v. Porter, (13 Serg. & Rawle, 100;) and in Michigan, in Preston v. Preston, (1 Doug. 292.) The decisions in all these cases were based upon the general rule to which I have referred. In the case of Robbins v. Bridge, Lord Abinger says, “The attorney is known merely as the agent, the attorney of the principal, and is directed by the principal himself. The agent acting for and on the part of the principal, does not bind himself, unless he offers to do so by express words.” So in Wires v. Briggs, the court say, “ Ho rule of law, it has been said, is better ascertained, or stands upon a stronger foundation than this, that where an agent names his principal the principal is responsible, and not the agentand in Preston v. Preston, the language of Felch, J., is, In conducting the suit, so far as third persons are concerned, the attorney is simply the agent of his client. The rule of law is well settled, that an agent does not become personally liable,- unless his principal is unknown, or there is no responsible principal, or the agent exceeds his power, or becomes liable by an •undertaking in his own name.”

It is clear, therefore, that the decisions in this state, in which attorneys and solicitors have been held liable for the fees of the officers of the court, upon a promise implied from- their acts done as attorneys merely, are in conflict with principle, and with the whole current of authorities elsewhere on the subject. In all such cases, it is a sound and salutary rule, that while the court, for the mere sake of restoring the harmony and symmetry of the law, will not interfere to overthrow a doctrine which has through a series of decisions come to be universally regarded as fixed and settled, they will nevertheless circumscribe the anomaly within as narrow limits as possible. It is never admissible to extend'such a rule by a resort to analogy; for the obvious reason, that every new case, to which the erroneous rule is applied, affords the basis of a still wider departure from principle.

But if such a rule is to be extended to analogous eases, it should at least appear, that the reasons which originally led to its adoption apply with all their force to the new eases. The leading case on the subject in the courts of this state is that of Adams v. Hopkins, (5 John. 252.) In the elaborate opinion,of Judge Thompson in that case, the reason for holding the attorney liable is distinctly stated, as follows : “ The sheriff had discretionary power left him whether to perform the service or not. He is bound to execute every legal process delivered to him, before he can demand his fees. All reasonable security ought therefore to be extended to him, to insure a compensation for his services. He cannot be presumed to be acquainted with the residence or responsibility of parties. Very different is the situation of the attorney. He is not bound to undertake any suit, or incur any responsibility, without a reasonable indemnity, if suspicious of his employer.” It is true the judge goes further and says : But admitting an attorney to stand in the situation of a general agent, this would not exonerate him ; for in such cases it is not only necessary that the agent should act in his official capacity, but that it should appear that the creditor intended to look to the principal for compensation.” It is scarcely necessary to say, that this position of the learned judge cannot be supported. It is in conflict not only with the cases which I have cited above, but many others. Indeed the contrary is too well established to be for a moment doubted. The decision must therefore be held to rest' exclusively upon the reasons given, growing out of the hardships of the case. And it must be conceded that these reasons are cogent, if it be admissible to depart so widely from an established principle, upon such grounds. It is true that the attorney knows his principal, and has it in his power completely to protect himself, by requiring an indemnity, while the sheriff is compelled to act without any such security. Were it not for this reason, it is clear the rule would never have been adopted; and if strictly confined to such cases, it will perhaps tend to promote justice and lead to no serious evils.

Some other reason, however, must be found for the application of the rale to cases where the officer employed, or set in motion by the attorney, is not obliged to act, but has equal means of self protection with the atorney himself. What reason can be given in such cases for violating a well understood general rule, for the sake of a party who has neglected to avail himself of the means in his power to secure a compensation for his services? The only one which has been suggested, is that given by the chancellor in the case of the Trustees of Watertown v. Cowen, (5 Paige, 510,) in which it was held that the solicitor in a suit in chancery was liable to an examiner for his fees. It is, that “ it appears to have been the uniform practice in this state for sheriffs, clerks, masters, registers, and other officers of courts of record, to charge their fees to the attorney or solicitor of the party for whose benefit the services are performed.” I do not intend to criticise the sufficiency of this reason; but would observe, that of all the officers specially enumerated by the chancellor, masters are the only ones who would not come substantially within the reason given for the rule in Adams v. Hopkins. The chancellor does not assert that there had been any such settled practice in regard to examiners; but after stating the practice in regard to other officers, he says: “ And there are no good reasons for distinguishing the case of an examiner from that of any other officer of the court in this respect.” In thus extending this rule, founded avowedly upon mere usage, to a case to which the usage or practice could not be said to have been applied, the chancellor evidently disregarded the doctrine, that a rule, which is in conflict with general principles, is not to be enlarged by reasoning, drawn from analogy.

But without calling in question the authority or 'accuracy of this decision, it is sufficient to say that it does not control the present case. Beferees do not belong to any of the classes of officers to whom the rule has been held to apply. On the contrary, it was expressly held in the case of Hornell v. Kinney, (1 How. Pr. R. 105,) that an attorney is not liable for the fees of referees. That, it is true, was an action at law, while the suit in which the plaintiffs acted was in equity; and the argument drawn from the identity of the duties performed now, by a referee in an equity suit, with those formerly performed by a master in chancery, is not without weight. It is, however, met by several considerations. To hold the attorney liable in the case of referees in equity suits, simply because their duties are similar to those, of masters in chancery, would be to make a new application of a rule admitted to be anomalous, and repugnant to general principles, upon the ground of analogy alone. But a stronger objection arises from the inconvenience and confusion which would result from applying to officers, known by the same name and appointed by the same'cotirt, different rules, depending merely upon the side of the court from which they happen to receive their appointment. Referees would have, in every case, to settle the often difficult question, whether the suit should be regarded as in its nature legal or equitable, before they could .determine to whom they must look for their fees. I see no ground for distinguishing between referees appointed under the judiciary act, in a suit originally commenced in chancery, and those appointed in an equity suit under the code. The difference in the duties and functions of referees, in different cases under the code, is as great as in chancery and common law cas'es prior to its adoption. Whatever rule, therefore, is adopted for this case, must equally apply to the case of referees in equity cases under the code.

It is not intended, by this decision, to interfere with the doctrine advanced in the case of Adams v. Hopkins. There is an apparent equity in holding the attorney liable in a case of that description, which goes very far to justify the departure from principle involved in the decision; and if the rule be confined to those cases to which the reason given by Judge Thompson applies, we have at least a clear line of distinction'between the cases where the liability of the attorney attaches and where it does not.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment reversed.  