
    Seth A. Abbey v. Charles L. Fish.
    1. Under the statutes in force in 1853, relating to the taxation and collection of costs, to wit, the act of March 9, 1835, entitled “ an act to regulate the taxation and collection of costs,” the eighth section of the act of same date, entitled “ an act to amend the act entitled an act to regulate the practice of the judicial courts,” and the act of March 18, 1839, entitled "an act for the disposition of unclaimed costs,” the party recovering judgment for his costs acquired an absolute interest in the moneys collected thereon only to the extent he had paid the fees taxed therein, and, upon payment to him of such judgment, he became liable to persons whose fees were unpaid, as for'money had and received for their use.
    
      2. Where the party recovering such judgment assigned “all his right, title, and interest therein” to his attorney of record, the assignee, upon receiving payment of the judgment, became liable to an action for money had and received at the suit of persons whose unpaid fees were taxed therein.
    Error to the District Court of Cuyahoga county.
    The facts sufficiently appear in the opinion of the court.
    
      Hutchins & Ingersoll, for plaintiff in error:
    I. Where a person, from the nature of his occupation, is under obligation to be at trouble and expense about the personal property of another, he has a particular lien on that property. 2 Kent’s Com. 634*.
    
      Now, the law made it the duty of the sheriff to render-services for the plaintiff in the original suit (Hamilton). Swan’s Stat. of 1841, p. 649, sec. 2 of act of 1831; also same, p. 651, sec. 7.
    And the sheriff' had no right to insist on any security, still loss on prepayment of his fees, unless in case the plaintiff is a non-resident. Or, same statute (p. 477, see. 17), the sheriff may exact the prepayment of printer's fee, not his own services, in a particular case.
    Being thus under obligation to render service for the plaintiff in the matter of putting plaintiff’s claim into a more valuable form, the sheriff should have a lien on thin judgment for his services.
    II. On general principles of equity, where one furnishes the consideration, or a part of it, and another takes the legal title, the -latter is held a trustee of the former, protanto. 4 Kent’s Com. 318; Story’s Equity Jurisprudence,, sec. 1201.
    Here, though the title of this judgment for damages and costs is in Hamilton, yet, as Abbey, the sheriff', furnished the consideration for part of it, in equity Hamilton should be considered a trustee for Abbey’s benefit, so far as Abbey’s fees entered into that judgnient.
    And this consideration answers the claim made by Fish, defendant in error, to wit, that the statute of March 9,. 1835, section 8, provided “that the party recovering fiual judgment shall be entitled to recover costs.” This in nowise denies that he shall recover and hold them in trust for the officer who performed the service.
    TTT The law in force when this judgment was rendered,, and still-in force, provides that the officer rendering services'shall be entitled to their fees after judgment, as if they had a property in the fees as such. Swan & Critchfield,, 644. Section 4 of act of March 9, 1835: “The clerk may, for his own benefit, or shall, at the instance of any person entitled to fees, . . . issue an execution commanding-the sheriff to make the costs and bring them into court, to render unto the persons entitled to the same.” Here are two things in substance enacted.
    1. That those persons who, as officers of court or witnesses, have contributed to the securing of the judgment, are entitled to the fees severally taxed in their favor.
    2. That the sheriff, when he collects such fees, shall distribute them to the persons entitled to the same.
    
    Again, Swan & Critchfield, p. 645, see. 1, act of March 18, 1839: “ The sheriff' shall pay to the clerk all costs collected ; but nothing shall prevent a sheriff from paying costs to parties entitled thereto.”
    But by section 32 of the act of March 1, 1831 (Swan’s Statutes of 1841, p. 483) : “ The sheriff, if he shall refuse or neglect, on demand to pay over to the plaintiff, all moneys by him collected for the use of said party, shall, on motion, be amerced,” etc.
    Now, if the costs incorporated in a judgment belong -thereby absolutely to the party recovering the judgment, then a sheriff would be liable to amercement for failure to pay over such costs to the plaintiff when he had collected the judgment; hut the act of 1839, just above cited, excuses the sheriff if he pays costs to the parties entitled to the same. Therefore, such costs were not the property of "the party recovering the judgment.
    Again, the assignment by Hamilton to Fish did not give Fish an absolute control or ownership of these costs; for, if Fish had ordered out execution, put it in the hands of the sheriff-, and the sheriff- had made the money thereon, the law above cited required the sheriff to pay the costs to the clerk or the parties entitled to the same — and the fact that Fish had paid the full value to Humilton for these costs, would not have given him any greater right to call on the clerk or sheriff for them, provided the parties in whose favor they were originally taxed, had never received their respective fees.
    IV. The cases decided in New York in regard to costs and fees sustain our position. Jordan v. Sherwood, 10 Wend. 622; Ward v. Lee, 13 Wend. 41.
    
      By the statutes of New York, at that time in force, it was provided: “ When a party shall recover any sum in-any court of record he shall recover costs,” etc.; and among the costs directed to be taxed were the attorney’s fees, as fixed by statute: so that, in that case, the attorney’s fees-sustained the same relation which the sheriff’s fees sustain in the case at bar. 2 Rev. Stat. of New York of 1836, 509, 510.
    The Court of Errors hold : “ The attorney of record has a lien on the judgment for his costs, and if the defendant pays them to an assignee, the defendant is still liable to-pay them to the attorney.” McGregor et al. v. Comstock, 28 N. Y. 337.
    If the assignor should receive them, there seems to be no-obstacle in the way of the attorney then calling on him for money had and received for the attorney’s use.
    The decision, which it is said has been given by one of the District Courts of this state, in effect that an attorney in Ohio has-no lien on adjudgment recovered by him, does-not impair the force of these authorities from New York;, for, in Ohio, attorney’s fees are not taxed as costs, and in-no sense make up any part of the plaintiff’s judgment.
    In the cases cited from New York, the attorneys’ fees-were taxed as costs of suit, just as the sheriff ’s fees are taxed in Ohio, and in like manner were incorporated in the judgment.
    V. It can not be denied that Eish took the transfer of these costs with full knowledge that they were yet unpaid to the sheriff; and the case last cited above, from 28 New York, distinctly holds, the attorney’s fees in that case not appearing on the docket to be paid, the assignee took them with full notice, and the court adds that it was a fraud on. the part of the assignee to attempt to deprive the attorney of his fees, wheu his labor and services had contributed to secure 'the result of a judgment. We think the same remark may be applied, with as much propriety, to the case of a sheriff or clerk who has aided in procuring the judgment for a party; and that neither law nor morality allows. a party or his assignee to deprive the officers of court of all those resources for the recovery of their fees, which exist for the party for the recovery of his damages; and that if such assignee gets possession of them he should account to-the officers.
    
      Charles L. Fish, in person:
    There were no costs, eo nomine, at common law. To remedy this, the statute of Gloucester (6 Ed. I, cap. 1) was passed, allowing costs in certain cases. See Hitchcock, J., in Bell v. Bates, 3 Ohio, 380, and Ferrier v. Carnes, Ex’rx, 5 Ohio, 45. Wright, J., in 5 Ohio; 276; Day v. Wadsworth, 13 How. (U. S.) 370.
    The costs occasioned by the plaintiff, and which he paid or is supposed to have paid, were included in the judgment, and he recovers them back or they remain due to-him. But whether paid or not, the officers of the court,, strangers to the judgment, can not interfere. When they trust their customers, they have the ’same remedy with other citizens to coerce payment. Napier v. Bowers, Wright, 692.
    The two acts of March 9, 1835, were in full force on May 17, 1853, when Hamilton recovered the judgment,, .but were repealed by the civil code.
    The cases cited, establish, if anything, the doctrine that he who recovers a judgment for his damages and his costs,, is vested with the absolute and exclusive ownership of the-property in the entire judgment, and with the absolute and exclusive right to control and have and enjoy the fruits of it; and that that part of the judgment made up of his-costs, is as absolutely his property as that part made up of damages.
    The Ohio cases cited were decided in the years 1828, 1831, and 1834, and it is reasonable to presume that the-legislature were familiar with them, when they passed the-acts above referred to, of March 9, 1835 — the one declaring-that the “party recovering final judgment shall be entitled to recover, coststhe other, “that on the rendition of judgment in any case, the costs of the party recovering, only, together with his debt or damage, shall be carried into his judgment.” No words could have been selected more lit than these, to embody in positive statutory laws the doctrine enunciated and declared by the learned judges who pronounced their opinion in those cases.
    This judgment was, therefore, the property absolutely of Plamilton. It was a debt of' record, due from Martin to Hamilton, established by the highest evidence, and declared, both by the Supreme Court of the state and by the legislature, to be his unqualifiedly and absolutely.
    If this be true, then Hamilton could discharge the entire judgment upon payment of its face, or for a barley-corn, or suffer it to become barred by lapse of time; and the sheriff" or clerk could not interfere to avert the extinguishment of the pretended interest which it is claimed they'had in said judgment.
    If Hamilton could thus extinguish or discharge the judgment., he could exercise that other right, incident to the ownership of all property, sell it, and thus convert it into money or other property, and vest in the purchaser a clear title; and whether Hamilton received the money or value of the judgment from the judgment debtor, and discharged the judgment, or from the assignee or purchaser, and assigned, or sold the judgment, could be of no conceivable practical difference to the sheriff' or clerk to whom Hamilton was a debtor, to the extent of their fees, for services rendered for him in the case : for whatever he did receive for the judgment, is presumed to be the most he could get for it, and to have to that extent enhanced his pecuniary ability to respond to the claims of his creditors.
    The act of March 9, 1835, vests in the party recovering the judgment the whole judgment, both damages and costs, .and thereby excludes the right of any other person to either. See Hitchcock, J., in Ludlow's Heirs v. Wade, 5 Ohio, 494.
    The right given to the clerk or other officer, by section 4 of the last act referred to, to issue execution for fees due and faxed, was unknown at common law; and under the maxim “ expressio unius est exclusio atterius,” it can not inferred that the legislature intended to vest in the clerk or any other person, except‘the party recovering judgment, any right to issue, or to order an execution to be issued on that judgment, or in any other manner whatever to interfere with such an execution, without authority of such party. They are mere strangers to the judgment, and execution could not issue legally on their application. Napier v. Bowers, Wright, 692.
    If, therefore, the clerk or sheriff had, as they claim, an interest in the judgment recovered by Hamilton v. Martin, it is a right or interest without a remedy ; and Judge Swayne said, in Van Hoffman v. City of Quincy, 4 Wallace, 554, “A right without a remedy is as if it were not.”
   McIlvaine, J.

The original action, in which Abney was plaintiff and Fish defendant, was brought into the Court of Common Pleas of Cuyahoga county by appeal, and the record therein made, shows the following state of facts:

1. In the year 1858, one William Hamilton recovered a judgment against one Robert Martin, in the same court, for $150 .damages, and $63.73, his costs therein taxed.

2. Of the fees taxed in Hamilton’s bill of costs were $6.45 earned by the plaintiff' Abbey as sheriff of said county, which, together with other fees of the plaintiff in the costs of increase, had not been paid.

3. On the 17th of October, 1854, Hamilton sold and assigned to the defendant Fish, who had been his attorney of record in the action, “all his right, title, and interest in and to said judgment for $150 damages, and $63.73, his costs.”

4. Fish, as such assignee, having received partial payments from Martin, afterward, on the 20th of March, 186», recovered a judgment, in his own name, against Martin, for the balance of said judgment for damages and costs, and also the costs of increase.

5. On the 18th of May, 1860, Fish, by an arrangement with Martin and one Wagner, received full payment of the last-named judgment, and the same was discharged.

Upon this state of facts, the Court of Common Pleas rendered judgment against Fish, and in favor of Abbey, for the amount of his unpaid fees taxed in the judgment of Hamilton v. Martin.

On petition in error in the District Court,, the judgment of the Court of Common Pleas was reversed, and this-proceeding is prosecuted to reverse the judgment of the District Court.

Whether the District Court erred or not depends upon the effect to be given to several acts of the legislature, in pari materia, in force at the time Hamilton recovered the-judgment for his costs against Martin.

The defendant in error claims that the judgment for costs-in favor of Hamilton, vested in him “the absolute and exclusive ownership of the property” therein, and “the absolute and exclusive right to control, and have and enjoy the fruits of it,” and rests his claim upon the provisions of the act of March 9, 1885, entitled “an act to regulate the-taxation and collection of costs,” S. & C. 643-645; and section 8 of an act of the same date, entitled an “ act to amend the act entitled an act to regulate the practice of the judicial courts,” which provided, “ that in all cases, except in those where it is otherwise provided by this act or the act to which this is an amendment, the party recovering final judgment shall be entitled to recover costs.” The first-named act provides:

“ Sec. 1. That in all suits, motions, and proceedings,, either at law or in chancery, prosecuted after the taking effect of this act, in any of the courts of this state, the costs of the parties shall be taxed and entered of record separately.
“Sec. 2. That on the rendition of judgment, in any ease, the costs of the party recovering only, together with Ms debt or damages, shall be carried into his judgment;, and the costs of the party against whom judgment shall be-rendered shall be stated in a separate clause of the record or docket entry.
“ Sec. 3. That the clerk or justice of the peace, issuing execution for such judgment, as aforesaid, shall indorse thereon the amount of the costs of the party condemned, which costs shall be collected by the officer to whom the writ may be directed, in the same manner and at the same time in which the judgment mentioned in the execution shall be collected.
“ Sec. 4. That when the party recovering shall neglect to sue out execution immediately, or after execution shall be returned without satisfaction of costs, the clerk may, for his own benefit, or shall, at the request of any person entitled to fees in the bill of costs, taxed against either party, and by order of the court, issue against the party, indebted to such clerk or other person, for such fees, whether plaintiff or defendant, an execution to compel the party to pay his own costs, in the following form,” etc.

On the other hand, the plaintiff in error claims that the judgment for costs in favor of the successful party is taken and must be held for the benefit of the persons entitled to-fees in the taxed bill of costs, that is to say, for the benefit-of the officers or other persons who have earned the fees-taxed in the bill of costs to the extent that they have not been paid, and for the benefit of the party in whose favor the judgment was rendered to the extent he may have paid fees. And in support of this claim he insists that the act of March 18, 1839, entitled “an act for the disposition of’ unclaimed costs,” must be construed in connection with the-acts above named.

The latter act provides as follows:

“ Sec. 1. That the'sheriff of each county shall pay to the clerk of the Court of Common Pleas of his said county all costs collected, or which may hereafter be collected by such sheriff' or his deputies;” .... “but nothing herein contained shall prevent a sheriff from paying costs to parties, entitled thereto.”

Section 2 provides for the advertisement of certified lists of moneys remaining in the hands of clerks for a certain period.

“ Sec. 3. All such advertised fees or costs, debt or damages, as shall remain in the hands of the clerk or former clerk, at the expiration of one year from the first day of the term at which the said certified list shall be set up on the door of the court-house, shall be by said clerks paid over to the treasurer of the county; and any person entitled to any costs or fees, debt or damages, so paid over, shall be entitled to an order for the same upon the county treasury, upon the certificate of the clerk by whom they have been paid over, or his successor in office.”

The question for determination is one of legislative intent simply, and whatever might be, or may have been, the construction placed upon the several acts of March 9, 1835, we are satisfied that the law, as it stood at the time Hamilton recovered his judgment for costs against Martin, can not be ascertained without considering the policy and purpose of the legislature as manifested in the act of 1839. And we are all agreed that the terms, “the parties entitled thereto,” .and “any person entitled to any costs or fees” contained in this act, were intended to and do include and mean the persons, whether officers or others, who earned the fees taxed in the bill of costs, and whose fees have not been paid, as well as the party in whose name the judgment for costs was taken; and we are further satisfied that the party in whose name the judgment is rendered, is entitled to receive the costs collected by the sheriff, only to the extent that he may have paid them to the persons who earned them.

This being the true construction of the latest expression of legislative will upon the subject, it follows that the party in whose name a judgment for costs may have been rendered, is not the absolute owner thereof, and entitled in his own right and for his own benefit to moneys collected thereon, except to the extent that he may have paid the taxable fees. And it also follows that the persons who earned the fees taxed in the judgment have an interest therein, and are entitled to the money collected thereon, to the extent that their fees have not been paid.

In my opinion, the right to recover a judgment for costs is not given to the successful party, because .he has paid the-taxable fees which were earned at his instance, or because he is supposed to have paid them, but because he is liable to pay them at the suit of those who earned them, if he has not in fact done so. The judgment is given for the purpose of reimbursement to the extent he may have paid fees, and for the purpose of indemnity to the extent he may be liable to pay them in the future.

I admit the power of the judgment creditor to receive the-amount of the judgment for costs from the debtor, and the right of the debtor to make voluntary payment to him, at least, until notified not to do so by persons entitled to fees, and thereby discharge himself from further liability. But when such payment is made, a new cause of action accrues-in favor of the “ person entitled to fees,” against the party receiving payment — an action for money had and received. It is true a right of action in favor of and against the same-parties existed before — an action for services performed. But the two causes of action are distinct, and depend upon very different states of fact. If the older bebarred by the statute of limitations, the latter may nevertheless be prosecuted.

Nor does it matter, that a summary remedy by execution against the party, to compel him to pay his own costs, has been provided by the fourth section of the act of March 9,. 1835, in relation to the taxation and collection of costs. That remedy is cumulative to the right of action for services performed, and does not exclude the remedy by suit for money had and received whenever the judgment creditor has realized on the judgment for costs.

It is said in argument, that officers and others entitled to-taxable fees may, in'all instances, demand payment in advance, and therefore it should be inferred that the legislature did not intend to secure to them any interest or equity in the judgment for costs. Whether the premise in this argument be correct, is a question of some doubt; but whether it be or not, it is quite clear that it never has been the policy of the legislature to compel prepayment in all-cases, as is manifest from the many provisions made for their collection after credit given.

If, then, an action for money had and received would have accrued, in favor of plaintiff in error, against Hamilton, the judgment creditor, in case the fruits of the judgment for costs had come into his hands, the only remaining question arising on the facts in this case, as above stated, is, “ Can such action be maintained against Fish, the assignee of Hamilton?"

This question, it seems to me, should be resolved in the affirmative, in consideration that Fish, at the time he took the assignment, was chargeable with knowledge that the taxable costs had been earned by persons other than the judgment creditor, and that such persons had an interest in the judgment for costs to the extent that they were unpaid — such knowledge being sufficient in law to put him upon inquiry as to their rights in the premises. But aside from these presumptions, the facts in this case show that Hamilton undertook to assign to Fish only such “right, title, and interest” in the judgment as he had, and also that Fish had been of counsel for Hamilton in the action, from which it may well be inferred that Fish did, in fact, know that the fees had not been paid to the officers, and therefore good conscience requires that he should pay to the parties entitled thereto the fees that have come into his hands.

But again, and above all, the extent of his interests under the assignment must be measured by the extent of redress he may have under the law which provides for the enforcement of his rights, to wit, by execution on the judgment. Had this means been employed for the enforcement of h-is rights, it is quite clear that the statute of 1839 would have excluded him, as well as his assignor, from all participation in the fruits of the judgment for costs, except in so far as fees taxed in the judgment had been actually paid to the persons who earned them.

The judgment of the District Court must be reversed, and the judgment of the Common Pleas affirmed.  