
    
      Ellis Palmer, administrator, vs. A. W. Thomson.
    
    An action at law will lie against a solicitor in equity, to compel him to refund costs paid him as solicitor by mistake.
    Counsel fees and expenses not provided for by the fee bill, are not embraced by the terms of a decree in equity directing a party “to pay all the costs.”
    
      Before Whitnee, J. at Union, Spring Term, 1851.
    This was a sum. pro. to recover $35, money paid by plaintiff to defendant by mistake.
    In a case in equity — "bill of interpleader — of Thomas M. Coin, administrator of Mary Means, against Wm. Orr and Ellis Palmer, administrators of Jane Orr, a consent decree was pronounced, which disposed of the funds in controversy, and directed Palmer to pay out of the funds “ all the costs in the case, to those entitled to the same.” Palmer paid the defendant, as complainant’s solicitor, $70. The commissioner taxed the costs and allowed the defendant, as complainant’s solicitor, only $35. Defendant claimed additional items — for attending a Chancellor on application for an injunction, for amended bill, brief and argument, &c. These items were not allowed by the commissioner.
    His Honor, the presiding Judge, was satisfied, from the evidence, that the great trouble and professional labor, which defendant had bestowed on the case, fully entitled him to a larger compensation than he had received; but being of opinion, that he was not entitled to receive from the plaintiff more than the amount taxed by the commissioner, he reluctantly decreed for the plaintiff.
    The defendant appealed, on the grounds, inter alia, that as the money was received by him as solicitor in equity, he was liable only in that Court; and that the terms of the decree should not be held to embrace taxed costs only, as that construction would subject the complainant, Coin, to expenses which, as a mere trustee, he ought not to be subjected to.
    
      Jeter, for the appellant.
    
      Herndon, contra.
   Curia, per

O’Neall, J.

In this case it is in vain to say that the defendant is a solicitor in Equity — that the payment was made to him as such — and that, therefore, he is only liable to be proceded against in that Court.

That Court alone possessed the power of compelling him to refund by rule and attachment.

But here, like any other officer who, by color of his office, receives money to which he is not legally entitled, he may be compelled to refund it by an action for money had and received.

The defendant, it is plain, is not entitled to more costs than have been taxed for him by the commissioner. If he had supposed himself entitled to more, he should have had the commissioner’s taxation corrected by the Chancellor.

The decree in the case of Coin vs. Orr and Palmer, directs this plaintiff “ to pay all the costs in the case.” Those words mean the legal costs given by the fee bill to both parties in the cause, and no more. They do not embrace counsel fees or expenses not provided for by the fee bill.

The motion to reverse the decree below is dismissed.

Evans, Withers and Whitner, JJ. concurred.

Frost, J. absent at the argument.

Motion dismissed.  