1 Doug. 292 | Mich. | 1844
delivered the opinion of the Court.
This case involves the inquiry as to how far an attorney
By the Revised Statutes, (R. S. 418, § 8,) original writs are required to be endorsed by the attorney for the plaintiff before service. This seems intended merely as a matter of convenience. No provision of law has annexed to it any legal liability. When the plaintiff is a non-resident, the writ is required to be endorsed by some sufficient person, who is an inhabitant of the state, and such endorser is made liable, under certain restrictions, for such costs as shall be awarded against the plaintiff. We are aware, however, of no statutory provision imposing on the attorney, as such, the payment of the costs, either of the opposite party, or of his own client.
The law has imposed upon attorneys certain duties and liabilities, given them certain privileges and imposed certain disabilities. These, however, are said to be for the sake of the court and the suitors in it. Grah. Pr. 37. No principle of law has imposed upon the attorney an absolute liability to pay for services rendered or expenses incurred by third persons, for the client, in the progress of the cause. In conducting the suit, so far as third persons are concerned, the attorney is simply the agent of his client. The rule of law is well settled, that an agent does not become personally liable, unless his principal is unknown, or there is no responsible principal, or the agent exceeds his powers, or becomes liable by an undertaking in his own name. From the very nature of the business done by the clerk of the court in the progress of a suit, he has before him a knowledge of the principal for whom the attorney acts, and that the latter acts only in his capacity of attorney. The statute fixes the amount to be paid to the clerk for the services required of him. He may refuse to perform any of those services until he re
We do not intend to say that an attorney can, in no case, be made personally liable to the clerk for his fees, with- ’ out proof of an express promise to pay them in each particular instance. If it should be shown that the clerk had ' uniformly refused credit to the client — that the attorney had been in the habit of paying such bills — that the clerk’ had repeatedly given him credit on his personal assump- - tion — that there had, indeed, been any course of dealing between the parties, which would warrant the inference that it was the mutual understanding between them, that the credit should be given to the attorney, and not to his . client, the attorney would be held personally liable. From
We are therefore of opinion, that the attorney of record is not liable in all cases for services rendered by the clerk in the progress of a cause, nor even in all cases where he applies to the clerk and procures the services to be rendered; but that, in order to charge the attorney with the fees for such services, the plaintiff must prove, either an express promise to pay, or such custom, course of dealing, or understanding of the parties, as raises the legal presumption of a personal promise to pay.
The nonsuit below was therefore properly entered, and it must be so certified to the Circuit Court.
Certified accordingly.