
    
      Hudson v. Johnson.
    April Term, 1791.
    Payment — Authority of Attorney to Receive — Custom. -Payment to an attorney at law is good, on the custom of the country, particularly if he have possession of the evidence of the debt, under particular circumstances, it might be otherwise; —as if notice be given to the debtor that no such power is vested in the attorney.
    Same — After Suit Brought — Costs. —Evidence may be given of payments made after suit brought at any time before trial; but not so as to deprive the plaintiff of costs if the payments were made after suit brought.
    Appellate Practice — Judgment Reversed as to Costs— Damages. — Where the appellate Court reverses the judgment as to costs, the successtul party is not entitled to damages on the costs.
    This was an action of debt, instituted in the county court of Eouisa by the appellant, against the appellee. — Plea, payment.
    At the trial the plaintiff filed a demurrer to the evidence, stating, that the defendant offered in evidence to maintain ihe issue on his part, a receipt, bearing date long subsequent to this suit, given by John Eewis the attorney who prosecuted this action for the plaintiff, and amongst whose papers the bond on which the suit was brought, was found; as also, that prior to the payment made by the said defendant to the said Eewis, on which account the said receipt was given, the defendant applied to the plaintiff to know where the bond was, who replied that it was in the possession of the said Lewis. — The demurrer was not joined, but the jury were discharged, and at a subsequent term, the court, after argument, over-ruled the demurrer, and gave judgment for the defendant with full costs, from which the plaintiff appealed to the District Court of Charlottesville.
    The District Court reversed the judgment, so far as costs were awarded the defendant preceding the payment to Lewis, and affirmed it as to the residue ; and entered judgment for the appellee for the costs incurred up to the time of such payment, and damages for retarding the execution thereof with the costs of the appeal.
    From this judgment Hudson appealed to this Court.
    
      
      Payments — Authority of Attorney to Receive. — In Smith v. Lamberts, 7 Gratt. 143, it Is said, in Hudson v. Johnson, 1 Wash. 10.il was decided that, in general, payment to an attorney of a debt which he is employed to recover, is good on the custom of the country, particularly if he has possession of the evidence of the debt; and in Smock v. Dade, 5 Rand. 639, it is asserted by the general court as a well settled doctrine, Ibat while the authority ofau attorney does not extend to the commutation of a debt without the client’s assent, his receipt of actual payment is a complete protection to the debtor. See a.lso, citing the principal case, Wilkinson v. Holloway, 7 Leigh 285: Yoakum v. Tilden. 3 W. Va. 170: foot-note to Branch v. Burnley, 1 Call 147. See also, Wilson v. Stokes, 4 Munf. 455; monographic note on “Attorney and Client” appended to Johnson v. Gibbons, 27 Gratt. 632.
    
    
      
      Custom. —The principal case is cited in Baker v. Preston, Gilmer 286.
    
    
      
      Costs. — The principal case is cited in McRea v. Brown, 2 Munf. 48; Dangerfleld v. Rootes, 1 Munf. 532; Douglass v. McCoy, 24 W. Va. 726. See mono-graphic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.
    
   The PRESIDENT.

— In general, payment to an attorney at law, is good on the custom of the country, particularly if he have possession of the specialty. Under particular circumstances this rule might not apply, as if notice were given that no such power was vested in the attorney. But in this case, the circumstances support the general principle ; for upon- enquiry being made for the bond, the defendant was referred by the plaintiff to the attorney.

It was objected to the payment, that it was made after the action was brought :

It has always been the practice, and very properly so, to allow discounts up to the time of the trial, but not so as to destroy the plaintiffs action, and entitle the defendant to costs; in that case, it should be considered by analogy to the case of bringing the money into Court, so as to entitle the plaintiff to a ^judgment for costs. Under the equity of the act, we think a payment to the plaintiff equivalent to bringing the money into court.

The judgment therefore of the District Court is right in reversing that of the County Court, giving costs to' the defendant, and awarding the plaintiff his. But we cannot affirm this judgment, because it goes further, and awards damages on those costs.

It must therefore be reversed with costs for that error, as to the daínages, and be affirmed as to the residue.  