Wilcox v. Bowers

36 N.H. 372 | N.H. | 1858

FowleR, J.

The construction, recently given by this court to the statute under which, the present action is brought, seems so entirely decisive of the questions raised by the defendant’s bill of exceptions, as to obviate any necessity of considering, in detail, the various positions taken in the argument. It was settled in Fox v. Whitney, decided in Hillsborough county, July 7, 1856, and reported in 33 N. H. 516, substantially, that the penalty prescribed by statute for taking illegal fees is incurred only when a public officer, or some person in his behalf, with his knowledge and assent, demands and receives, as compensation for some service by him rendered in the discharge of his official duties, fees other or greater than the law permits him to claim for such service.

Taking the interpretation thus given to the statute as the true one, it seems quite clear that the motion for a nonsuit should have prevailed ; for, however attorneys might be regarded, while engaged in court, taxing and receiving fees for themselves in bills of costs, filed and allowed as the foundations of judgments rendered, there can be no well founded pretence for considering them to be acting in the capacity of public officers, while charging and receiving compensation in their offices, for services rendered by them for their clients, in matters preliminary to proceedings before some judicial tribunal. The charge of an attorney for his services in making and indorsing a writ and filling out the summons, is manifestly not one of those u fees to be received by public officers for their official services,” which it was the intention of the Legislature to limit and define by the enactment under consideration.

The provision of the statute, for a violation of which the penalty sought in this case is alleged to have been incurred, is contained in the 5th section of the 229th chapter of the Revised Statutes, Compiled Laws 590, and is in these words :

“ Sec. 5. The following fees shall be allowed in bills of costs taxed in the Superior Court or Court of Common Pleas : For the writ, including the blank, one dollar.”

By its express terms, this provision is limited in its operation to “ bills of cost taxed in court,” as the foundation of judgments rendered therein, and the statute, being highly penal in its character, must, on well established principles, be construed strictly. How, then, can it be so extended as to include within its penalties the conduct of the defendant, in adjusting, for his client, a charge for services rendered in making a writ, before the action thereby commenced had ever been entered in court ? Had the construction adopted in Fox v. Whitney not been already given to this statute, we are unable to perceive how it could fairly have been holden, that an attorney incurred the penalty of fifty dollars by receiving, before entry in court, whether from the plaintiff or the defendant, the compensation ordinarily charged the plaintiff for making a court writ, when the penalty would seem to be expressly limited to the allowance, in bills of cost taxed in court, as an item for which judgment is to be rendered between the parties, of more than one dollar for.the writs, including the blank.

Before the rendition of judgment, or the taxation of costs as preliminary thereto, neither the plaintiff or his attorney has any claim upon the defendant which can be enforced, for either damages or costs. The whole matter in controversy is contingent, and rests in uncertainty. If the defendant desires to avoid further liability for costs or damages upon any claim or in any suit of the plaintiff against him, there are various modes in which it may be done, in no one of which is he compelled or under any sort of legal obligation to adjust or satisfy, under that name, any charge of the plaintiff’s attorney, allowing for drawing or making the writ. Such charge is exclusively a matter between the attorney and his client, with which the defendant has nothing to do, and for which there is no legal claim against him. If he choose to pay the whole or any portion of it, for the purpose of adjusting the suit against him, as a matter of convenience and accommodation, rather than resort to either of the prescribed and well known methods of avoiding further liability in such cases, he must be regarded as having done so voluntarily, and not upon any such legal compulsion as will enable him to recover the statute penalty for taking illegal fees of the attorney to whom he pays it'. He may tender to that attorney the amount of debt and costs, if he elect so to do, and the statute makes such tender a bar to any further proceedings. Revised Statutes, chap. 187, sec. 1; Compiled Laws 482. But we are aware of no provision of law, statute or common, requiring the plaintiff’s attorney to state or receive the amount of such debt or costs ; much less to do so under the penalty imposed upon public officers for taking illegal fees for services rendered in the discharge of official duty, for any error or mistake therein, whether accidental or intentional, and however slight or unimportant.

As the court below erred in overruling the motion for a non-suit, the judgment rendered upon the verdict against the defendant must be vacated.

Exceptions sustained.