
    Britton & Hadley, plaintiffs in error, agt. Frink, defendant in error.
    
      Questions Discussed.
    
    1'. Whether an action should be brought in the name of the sheriff, or his deputy, to recover back an excess of a bill of costs, paid by the deputy, to settle a suit against the sheriff, where the deputy declared that he paid it on his own account?
    2. Whether suit was properly brought against the partners to recover an excess of costs, where one only appeared as attorney, and the money was received'and receipt given by him?
    3. Whether-an excess of costs paid without taxation can be recovered back by action? Does an offer to tax, render the payment without, a voluntary payment?
    This was a suit commenced in a Justice’s Court by Frink, sheriff, against Britton & Hadley. Plaintiff declared for moneys had and received by the defendants to the plaintiff’s use, and also for moneys overpaid on a bill of costs produced. Defendants pleaded the general issue and gave notice of set-off for goods sold and delivered, work, labor and 'services, and on the usual money counts.
    It was admitted by defendants that they were law partners, and in business as such, also that the signature of “ A. K. Hadley” to a certain bill of costs produced in court was genuine, of which the following is a copy:
    
      “Supreme Court.
    
      
    
    Ret. fee,------------------------- $2-00
    Dr. Narr, P67, 4 copies, 6'67,........ 8"34
    Serving and notice and proof,........ P63
    Filing Narr, 25, Ps. 30,............. -55
    Costs, &c.,............— *........ *75
    $13-27
    Received payment, Oct. 13, 1845,
    A. K. HADLEY, Plffs Ally.
    
    The defendants also admitted a copy declaration, produced and referred to in the bill of costs, to be corfect (it being the usual declaration against a sheriff for not returning an execution, and damages laid at $200).
    Plaintiff introduced one Jeremiah Green, as a witness, whose testimony was substantially as follows: That the plaintiff was sheriff of Saratoga county, and that Rensselaer Carrier was one of his deputies. Witness and Carrier went to defendants’ to settle the suit; Carrier inquired the amount of defendants’ costs, and said he would pay the amount of debt and costs when ascertained. The parties agreed upon the amount of the debt, which was between $50 and $60. Carrier said he wanted a bill of particulars of the costs; Hadley then made them out as above stated. Plaintiff here rested. Defendants moved for a nonsuit on the ground:
    1st. That there was no evidence of the payment of money by the plaintiff, or for his use. 2d. If any money was paid, it was paid voluntarily. 3d. If it be pretended that the money was paid by mistake, it was a mistake of law and not of fact, and for which no action lies.
    The motion for nonsuit was denied, and the defendants recalled on cross-examination, Green, who testified that Mr. Carrier said that he should pay it himself and bear the loss himself.
    Defendants then called testimony and proved other items which were not charged in the bill, and for which they claimed we.e actually rendered before the suit was settled, to wit: counsel perusing and signing special declaration, also brief, also proof of disbursements, also serving notice to plead. Defendants produced the draft declaration, which was like the copy, with the exception that “ John G. Britton, of counsel,” was signed to it; also produced a brief made by defendants, which were proved by a clerk in the defendants’ office; but the witness did not know whether the name of Britton was on the draft when he copied it or not; nor did he know that the brief was made before the suit was settled. He stated that in the office, they sometimes made a copy declaration to keep, and sometimes not. He did not know whether or not any proof of disbursements was ever made.
    The plaintiff admitted that the defendants were attorneys and counsellors in the Supreme Court. The justice rendered judgment for plaintiff for damages $2*00, and costs $3*45.
    The judgment was carried to the Rensselaer Common Pleas on certiorari, and reversed, on the ground “ that the defendants did not receive any money of the plaintiff to his use, it was Carrier’s money.”
    A writ of error was brought, and the judgment of reversal carried to the Supreme Court, where the judgment of the Common Pleas was reversed and that of the justice affirmed; and the following was the opinion delivered:
   By the Court, Jewett, Justice.

No issue had been joined or judgment by default entered in the suit of Lee vs. Frink before it was settled. The sum due the plaintiff was less than one hundred dollars. The defendants, as attorneys and counsellors for Lee in that suit, demanded and received for their fees and disbursements $13*27, on its settlement. The extent of the defendants’ legal charges in that suit, was $10*85, composed of the following items:

Retaining fee as attorney,____________ $3*00
Drawing declaration,................. 2*50
Counsel perusing, &c. (it being special),. 2*00
Four copies declaration at $1*25,........ 5*00
Drawing bill of costs,_________________ *50
$13*00

A. K. Hadley and N. Hill Jr., for plaintiffs in error.

I. The action before the justice waS improperly brought in the name of Isaac Frink, sheriff, &c.

1. Rensselaer Carrier was one of the deputies of Isaac Frink, sheriff, and he, Carrier, paid the bill of costs.

2. The money paid belonged to Carrier; was paid by him on his own account, for himself, and not for the sheriff Frink, and he so declared at the time he paid the money. Folios 26, 29.

3. The sheriff Frink was sued by Nathaniel Lee for not return-

ing an execution, which had been delivered to Carrier as deputy of Frink, and he, Carrier, had been guilty of latches in not re-» turning the said execution; and Carrier, as between him and Frink, was bound to pay all damages and costs; and this explains whát Carrier said at the time the costs were paid. Folios 26 and 29. &

4. Frink never authorized the payment of the money, and has never refunded to Carrier the money paid by him; and it was not, is not, nor can it be pretended, that Frink is liable to repay to Carrier.

II. John C. Britton was improperly joined in the action before the justice as defendant with Hadley. 1 /

1. In the suit commenced by Nathaniel Lee against Isaac Frink, sheriff, &c., Hadley alone appeared as plaintiff’s attorney, and he received the costs and gave a receipt, and signed the same— A. K. Hadley, plaintiff’s attorney. Folios 21 and 22.

Deduct one-third,.............. 4"33
|8-67
Serving narr, &c., as charged,__________ 1-63
Filing narr, and postage as charged,..... -55
110-85

Laws of 1840, p. 327, §2; p. 332, § 11; sub. 2; Laws of 1844, p. 402, § 1.

The defendants overcharged $2-42. The recovery before the justice was within that sum, and was well founded upon the evidence in the case; the judgment of the Common Pleas should be reversed and that of the justice affirmed.

2. Hadley, and not Hadley & Britton, is accountable if any one is accountable for the excess of costs, and Hadley alone ought to have been sued (4 John. R. 289). ’

3. Britton could not be sued under the statute for treble damages, or be indicted according to the evidence in this case.

HI. From.the evidence, no action could be maintained against Hadley, or Hadley & Britton, for the excess of costs alleged to have been received.

1. It has been decided by this court, that if the bill of costs had been taxed by a proper officer, as made out and.paid by Carrier, no action would lie for the excess (2 Denio, 26).

2. No fees were charged and paid for expense of taxation.

3. - Hadley offered and proposed to Carrier to have the costs taxed, and the taxation was waived by Carrier probably to save the fees for attendance and taxation. Folio 29.

4. The waiver of taxation by Carrier, and the payment of the costs is the same, and ought to have the same effect as if the costs had been taxed.

5. The payment of the bill of costs is therefore to be considered as a voluntary payment on the part of Carrier, with a full knowledge of his right to have the bill of costs taxed, accompanied with an offer by Hadley to have the same taxed, and the taxation waived by Carrier. The mistake, if any, was one of law not of fact (9 Cow. 674; 1 Wend. 655).

IV. If any action will lie, the action ought to have been ■brought in the name of Carrier.

1. The money paid was the money of Carrier, paid by him without being authorized to pay the same by Frink. Nor has Frink subsequently repaid the same to Carrier.

2. The money was paid by Carrier to save harmless and indemnify Frink from all damages and costs, in consequence of his, •Carrier’s, negligence in not returning the execution as deputy sheriff of Frink.

V. The plaintiff’s attorney in the suit against the sheriff, received no greater amount in fact than he was lawfully entitled to. There was no doubt a mistake in carrying out the charges for copies ^declaration. But in addition to the items charged he was entitled to

Counsel perusing special narr,...................... $2-00

Notice to plead,--------------------------------- -25

Copy costs for defendant 25, service 50,.......... "75

Attending to fix amount, equivalent to attending taxation, "25

$3-25

E. F. Bullard, for defendant in error.

I. The action was properly brought in the name of I. Frink, sheriff, the principal.

1. Although the money was paid by Carrier the agent, it was paid directly to and for the use of Frink, the principal, and did in fact settle the suit and discharge him from liability.

2. Frink, the principal, is equally bound by the acts of his agent by a subsequent ratification. No prior request to pay was necessary (8 Cow. R. 60; 12 Mass. 60; 7 Am. Com. Law, 453; 9 Peters, 629; 4 Wend. 465; 10 Wend. 218).

3. The bringing of this suit by Frink is a ratification of the payment by Carrier the agent. Either principal or agent might sue (Cowp. 805; Cow. Tr. 80).

4. It is not proved that Carrier had the execution as deputy, as alleged by plaintiffs.

5. The principal is the only person who can disavow the acts of his agent.

6. The plaintiffs in error having acknowledged Carrier’s agency by receiving the money as a payment to the use of Frink, are estopped from denying it. •

II. A further answer to the plaintiff’s first point is, that all this proof in regard to payment by Carrier, and loss by him, was after the motion for nonsuit (see fol. 26). After that testimony was given, the motion for nonsuit was not renewed, nor was that point raised, and the point can not now be, raised on error (see VI point below).

III. The second point of Britton & Hadley, is easily answered, as the action is for money had and received, and was received by one partner in the usual course of their business. Also no such point was made in the court below (see VIpoint below).

Hadley was first sued alone, and he pleaded the nonjoinder of Britton in abatement, which is the reason he did not raise that point in the court below. But this is not in the case.

IV. In answer to plaintiff’s third point, the case of 2 Benio, 26, does not apply, as here was no taxation, and the plaintiffs took the costs at their peril.

The payment was not voluntary, as it was demanded by plaintiffs’ attorney, and received, and was necessarily paid to stop suit and prevent a further increase of costs. It might as well be insisted Frink should have waited until judgment and execution, and until his property was sold thereupon, and thus pay $30 costs hy compulsion, to have a remedy to recover back $2, illegally demanded.

The law is guilty of demanding no such absurdity. 2 Barn. & Cres. 729; 2 Barn. & Ald. 562; 1 Chiity R. 295; 4 Dowl. & Ryl. 283, all show that payment of fees illegally demanded is not a voluntary payment (9 John. R. 370; id. 201; 15 Wend. 321).

V. The plaintiffs received more fees than they were entitled to (see opinion of Sup. Court, fol. 51, and the statute there cited). The recovery before the justice is right (2 R. S. 650, § 56 and 57).

VI. The court can not reverse a justice’s judgment on error, upon any point not made in the court below (19 Wend. 361; see fol. 25).

VH. The justice’s judgment presumed correct, unless érror be shown affirmatively. The whole evidence is not returned by the justice, and therefore the return is to be treated as a bill of exceptions, and not as a case; and plaintiffs in error confined to the points made in court below (see fol. 25; 21 Wend. 305; 1 Hill, 61; 3 Hill, 75; 2 Hill, 125; 3 John. R. 439).

Judgment aifirmed, unanimously.

Reported in this court, 3 How. Pr. R. 102.

Note.—An excess of costs paid to an attorney on the settlement of a suit, without taxation, may be recovered back by action.

Payment of fees illegally demanded, is not a voluntary payment (2 Barn. & Cres. 729; 2 Barn. & Ald. 562; 1 Chitty R. 295; 4 Dowl. & Ryl. 283; 9 John. 370; id. 201; 15 Wend. 321). Thus, where an attorney brought a suit against a sheriff for not returning an execution which was in the hands of his deputy, and the deputy settled the amount of the debt, and paid the attorney his costs on the suit against the sheriff as made out, without taxation," and the sheriff subsequently brought an action and recovered judgment against the attorney for an excess of costs received; held, that the attorney was liable for such excess, although he offered to have the costs taxed, if the deputy requested it; they were received without taxation at his peril.

It appears from the case, that the suit was properly brought by the sheriff, although the deputy stated, when he paid the hill of costs, ‘1 that he should pay it himself, and bear the loss himself.” It was a payment to and for the use of the sheriff, which discharged the spit against him, and was subsequently ratified by him in bringing the suit against the attorney. The sheriff was the only person who could disavow the acts of his deputy.  