
    James v. Wilson.
    Where the petition claimed a certain sum of mone3r as principal, and also claimed interest in general terms, the jury found “for the plaintiff in the sum sued for,” and judgment was rendered in favor of the plaintiff for the principal sum claimed; on appeal’by the defendant, it was held that the verdict was sufficiently certain to authorize the judgment. (Note 34)
    Whore certificates are presented to a surveyor for location, and are rejected by him, he is not entitled to feos for having searched his records to see whether the certificates should be received by him; the “search” provided for by the fee bill is a search, made on request. among the records which properly belong to his office.
    An officer who exacts the payment of money on the ground that the same is due him for fees, cannot, when sued for a return of the money, claim that his services were worth the amount, notwithstanding the law allowed him no fees. But, Quere1?
    
    Quero where the law does not provide any fee for a given service, whether the officer may not stipulate for a fair compensation; and whether, if the same were so stipulated for and paid over, it could be recovered back.
    Appeal from Bexar. The appellee brought suit to recover back from the appellant $307.50, alleged lo have been exacted by the Latter, under the pretense that lie, as district surveyor, was entitled to that amount as fees of office for having examined and rejected 1470 land certificates for J. N. Reynolds, for whose benefit the plaintiff sued, and to have been paid by the plaintiff as agent for said Reynolds, on the representation of the defendant that he was so entitled. The petition claimed interest in general terms. The answer contained a general denial.
    The statement of facts agreed on by the parties was, that “ it was proved that the certificates presented by the plaintiff Wilson, agent for J. 1ST. Reynolds, were false, framlnlent, and void; ” that “the hooks containing the records of the certificates approved by the traveling board of land commissioners did not contain any evidence of the approval of said certificates,” and that “the defendant, John James, charged, as alleged, the sum of twenty-five cents as a fee for a search in each case, which total charge amounts to the smn charged in the petition.” The jury returned the following verdict: “We, the jury, find for the plaintiff in the sum sued for,” on-whicíi the court gave judgment for the plaintiff for $307.50, the principal sum claimed in the petition, and the defendant appealed.
    
      Hancock, for appellant.
    I. The verdict of the jury is for the “ sum sued for.” This is the original amount paid, with interest thereon from the time of payment up to the rendition of Hie judgment. It is the amount asked for by the appellee in his prayer to the court; and the allegations in his petition are sufficiently specific and certain to entitle him to a judgment for Che amount paid, with interest, if the law permitted interest to he recovered on an account. It was not the province of the jury to determine what the law ¡filowed the appellee to recover; and the terms used by them in their verdict can be construed to mean nothing else than that the appellee should recover the whole amount claimed by him. This verdict, then, was not warranted by the law and the facts of the case, and does not sustain the judgment of the court rendered upon it. It does not answer the objection that the judgment was for the sum the jury should have found, if they ought to have found any sum for the appellee. The judgment must be upon uncí conformable to the verdict. (3 U. S. Dig., p. 627 ;*C Mass. R., 1; 6 ST. Ilamp. R., 518.)
    II. But it is not believed, from the facts of this case, that the appellee was entitled to recover back the money he had paid. The judgment was for services actually rendered by the appellant at the instance of the appellee, recognized by him, and the payment made with a full knowledge of what the charge was made for. It is allowed district surveyors to charge twenty-live cents for each examination of papers and records in their offices. (Hart. Dig., art. 1389.)
    HI. Again, the service was rendered by appellant, and was [332] trouble and inconvenience to him,'for which he was entitled to a reasonable compensation. The compensation was agreed upon by the parties at the time of payment, and the consideration was sufficient, though it may have been of no benefit to the appellee. And if it be contended that it was not a duty required to be performed by appellant as a surveyor, he had the right as an individual to make the investigation, to charge and receive a fair consideration for his labor. (Story, Cont., secs. 430, 431.)
    
      I. A. %• tr. W. Paschal, for appellee.
    The onty question is, whether the surveyor was entitled for a search under the fee bill. It is plain he was not. He was entitled to charge twenty-five cents for every search in his records. But iu this case there was no necessity of a search. Article 1983 of Hartlejr’s Digest prescribes the evidence necessary to be produced to justify a location or survey. This evidence was not in the district surveyor’s office, and therefore there was no necessity of a search, nor was any made.
   "Wheeler, J.

Tested by the rules which have been recognized by repeated decisions of this court, wo think the verdict sufficiently certain to enable the court to give judgment upon it. (Burton v. Anderson, 1 Tex. R., 93; Burton v. Bondies, 2 Id., 203; Mays v. Lewis, 4 Id.)

A verdict is sufficiently certain which finds the issue, and may he rendered certain by reference to the pleadings. So, a verdict was held sufficiently certain which found for the plaintiff “the debt in the declaration mentioned.” (1 How. Miss. R., 579; 4 Leigh R., 114.) It will be sufficient, if it can be ascertained what the intention'of the jury is. (I Dali. R., 458.)

Note 34. — Wills v. Barnett, post, 584; Parker v. Leman, 10 T., 116; Avery v. Avery, 12 T., 54; Gal breath v. Atkinson, 15 T., 21; Moke v. Fellman, 17 T., 367; Pearce u. Bell, 21 T., 688; New-comb v. Walton, 41T., 318.

By the “sum sued for,” the jury evidently meant the principal smn set out ami claimed'in the petition. Interest was nowhere mentioned in staling the cause of action, but only in tlie prayer for relief. But if tlie verdict had found interest, tlie objection might have been removed by a remittitur, which it has been the practice of this court to allow at anytime before judgment.

Was tlie plaintiff entitled to recover back from tlie surveyor the money paid him? Or did tlie law authorize tlie surveyor to exact tlie fees received by him in tills instance? for. if it did not, it can scarcely admit of a question that the plaintiff- was entitled to recover back tlie money.

In support of the right of the surveyor to make tlie charge, we are referred to article 1369 of the Digest, which authorizes the surveyor to charge “for each examination of papers and records in his office, at the request of any person wishing to examine them, twenty-five cents.”

This provision has reference to those “papers and records” which properly belong to the office and custody of tlie surveyor; and the charge is allowed when the examination is made of those papers, &e., on request. Here there is no evidence of such examination. Tlie surveyor was not required to make an examination of jiapers or records in his office in order to determine whether the certificates in question had been duly recommended as legal and genuine. All he could be required to do was, to see whether tlie certificates were, accompanied with the requisite evidence of their having been recommended by the proper tribunal as legal and genuine certificates. If not, lie could not be required to receive or make surveys upon them. (Bracken v. Wells, 3 Tex. R., 88.) If the certificates had been accompanied with applications, properly made, for locations, I entertain no doubt that tlie surveyor, if satisfied from any authentic source of their having been duly recommended, might have filed them, and charged tlie fees allowed for that purpose. But that was not the charge made by him; and we are not aware of any law by which, on the evidence in the record, this charge can he maintained as á charge for official services.

But it is insisted that, if not properly chargeable as fees of office, still the surveyor has the right to retain the money, as a just compensation for services actually performed by him, at the instance of the plaintiff, not in his official but in his personal capacity.

If tlie money had been paid for services actually rendered in respect to these certificates, other than official services; or if it did not appear that tlie sum now sought to he recovered liad been exacted by the surveyor as fees of office, there would he much force in tlie argument that the services having been stipulated for, and the price agreed on" paid, it could not he recovered hack. But it is sufficient, for tlie present inquiry, that it is agreed that the money was exacted and received by tlie officer as fees of office, and not then, nor at the trial, claimed as money to which he was entitled, or which he ought to be permitted to retain, as a just compensation for services rendered by him in his private, personal capacity; and, moreover, that there is in the record no evidence of services rendered which would have justified the detention of the money on that ground. Whether any and what services were rendered by the defendant, does not distinctly appear. At the trial, he asserted the right to retain the money, oil the sole ground that it was properly chargeable as fees of office; and if a different ground could now be considered, there is nothing in the record to support it.

We see no error in tlie judgment, and are of opinion that it be affirmed.

Judgment affirmed.  