43 N.H. 270 | N.H. | 1861
Por a long time it appears to have been the usage in this State, for sheriffs to charge their fees in the service of writs of mesne process and final execution to the attorneys of the persons for whom they were sued out, in case the writs were committed to them for service by said attorneys. And this seems to have been the understanding of the court in Eastman v. Coös Bank, 1 N. H. 23, where the question was, whether the attorney was not alone liable, although the writ was delivered by another to the sheriff with directions to charge his fees to the bank. Such being the practice, whenever the attorney delivers to the sheriff a writ with a request, expressed or to be inferred from the delivery, that he should execute it, the law will imply a promise on the part of the attorney to pay the fees, unless it be repelled by notice to the contrary. It is true that the attorney is but the agent of the party, and the agency must in general be regarded as disclosed, and yet the agent may bind himself personally, either by an- express promise,
Among the cases cited and relied on in Judson v. Gray, is the case of Robbins v. Bridge, 3 Mees. & W. 114, which decided that the attorney was not liable for the fees of a witness whom he had subpcenaed. In the course of the opinion Lord Abinger says, that the attorney is known merely as the agent — the attorney of the principal, and acting for him; and that “ he does not render himself liable for any thing, unless it is for those charges which he himself is bound to pay and for which he makes a charge. If, therefore,
Upon a careful examination of these cases, however, we see nothing to shake the. decisions in New-York and Massachusetts; and our conclusion, therefore, is, that the defendant is liable for the fees on such writs and executions as were committed by him, as attorney, to the plaintiff for service, unless the implied assumpsit is rebutted; but that, in respect to such as were delivered by the parties or otherwise and not by the defendant, he is not liable for the fees, although he indorsed the writs.