CH. 30. 3 Cain. 226, Graves. See s. 11. orders of a general agent. But generally, the factor must pursue his orders, and will be liable for any injury or loss consequent on his departing from them; 1 Bay 169, Wilk inson v. Campbell; 1 John. Ca. 459, 3 Cain. 238. So a merchant who accepts a consignment he is not obliged to do, is liable for a loss which ensues, if he do not observe the orders given him. If the agent act with good faith his orders are liberally construed. 13. But a factor having no particular instructions, and in whom a discretion is vested, is not responsible if he act according to the best of his judgment, and is not guilty of any fraud or gross abuse of the confidence placed in him. If a loss ensue from mistake or error of judgment, where there is no lata culpa or crassa negligentia, his principal and not he 1 Johns. Ca. must bear it. And if liable, he is excused if the principal adopt his acts, Fowle & al. v. Stevenson; 1 Cain. 539, Codwise v. Hacker; 2 Cain. Er. 36, 49, 63. 110. 2 Dall. 136.-4 Dail. 136. 3 Cranch v. Barry. 14. Several distinct merchants residing abroad employ a factor, and empower him to remit by merchandise or good bills of exchange, as he might judge best. He remitted by a general bill payable to one of them, with separate drafts on him in favour of each of the others. Held, a good remittance; but material, notice be given of each one's proportion to the parties, nor is the factor liable if the drawer was in good credit when he drew, though he fail afterwards. 15. A factor acting according to his instructions or not. 415, Manilla Error to the Circuit Court in Maryland. The plts, Spanish merchants, Jan. 27, 1798, sent instructions by Menendy, the principal agent, to the deft. to purchase for them 20,000 quintals of tobacco, and to ship it as soon as convenient in six or more vessels, on his, the deft's., account and risk, and as his own, (intention to cover it from capture) advised to consult said Menendy; and added, "you will take care to seek captains of fidelity, American born, and that all the crews be strictly agreeable to law." The deft. purchased the tobacco at $10 50 a quintal, but could not procure American vessels for all. Shipped one cargo in a Moorish, and one in a Danish vessel. And after war was immediately expected between France and the United States, shipped one by Menendy's advice to a neutral Genoese merchant, and on his account and risk. These three cargoes were captured, and plts. sued to throw the loss on the deft. for a departure from orders. Judgment for him, as his instructions justified what he did. The main objects were to protect the property as neutral, and for the deft. to be advised by said Menendy, plts'. confidential agent. CHAPTER XXXI. Сн. 31. THE ACTION OF ASSUMPSIT FOR FEES, &c. CASES IN WHICH IT Stockhold v. 1. It has been decided, that a quantum meruit lies for Salk. 330, fees. As for serving as a commissioner on a commission to Collington.examine witnesses when appointed on the nomination of the 2 Stra. 1262. deft. The declaration stated that the plt. at the deft's. request served him &c.; see 1 Esp. 8; Ch. 144. 331, 332, 2. An officer must execute a precept, and cannot previ- 1 Salk. 330, ously demand his fees, but may, after it is executed, though Earle v. erroneous; for the error is not the officer's fault, and when he Plummer.had done the business he is justly entitled to a reasonable 2 Stra. 1262. allowance, and is entitled on execution, though the parties compromise before the goods are sold, and after the seizure. 5 D. & E. 470; 1 Cain. 192. Ballard v. Ge § 3. No court has power to settle the fees of its officers so 12 Mod. 609, as to conclude the subject. But on a suit in a quantum me- rard. ruit by an officer for his fees, the judges assessing them in a reasonable manner may be good evidence, but not conclusive to the jury; but after once found reasonable by a jury, then this finding may be conclusive evidence. Burdeaux v. -4 T. R. 317. 4. There is no fee for christening or burying, unless by 1 Salk. 332, custom, and then only to him who does the duty, 12 Mod. 171. Lancaster. 5. General principles in England seem to be, that a coun- 3 Bl. Com. sellor or physician cannot maintain an action for his fees. But Ch. Notes 3. our practice is different, as several actions for fees which have Essex, Nov. been supported will shew. This case was assumpsit for a S. J. Court, doctor's fee for delivering the deft's. wife in a very difficult 1789, Swett v. Hooper. case, and judgment for the plt. on argument. Chartey v. 6. In this case in England it was held, that a physician 4 T. R. 318, cannot maintain an action for his fees, for that the reward is merely honorary. Likened to a barrister's case. rest A on a ca. sa. while court, and he is discharged, the service § 7. By the laws of the Union and of each State the fees If a sheriff arof office are generally regulated and ascertained, so that it is very seldom the reward depends on a quantum meruit in attending, regard to officer's fees; but it is otherwise as to physicians and attornies as between them and their clients &c. § 8. Where attornies have a lien for their fees; see Lien and Set-off, Ch. 168, a. 6; and debt for fees, see Debt, Ch. 144; assumpsit lies for attorney's fees on 3 J. I. 7, s. 1, directing bills to be given. being void, he is entitled to no fee. 10 Johns. R. 93. Сн. 31. Boyter v. Dodsworth. § 9. Assumpsit for money had and received, to recover back fees received by the deft. to the plt's. use as belfry-sex6 D. & E. 681, ton &c., an office for life. Held, he cannot recover, unless the fees demanded be known and accustomed fees annexed to the office, and such as the legal officer himself can recover in a court of law from persons bound by law to pay such fees. Hence, the remedy extends not to such fees as persons may give or not, as they please, mere gratuities. And he that performs the services, officer or not, for which the gratuity is given, is entitled to it on principles of natural justice. The gratuity in this case was received for shewing the church to strangers. The grant permitted the plt. to shew it, but this is no grant of an office. Where an usher recovered his fees, see 2 Stra. 747; Salk. 78; Duppa v. Gerard. 2 Stra. 1027, Bulstrode v. Gilburn. 7 Johns. R. 35, 36, M'Intyre v. Trumbull.6 Bac. Abr. 156. 2 W. Bl. 1181. Raines v. Nelson. Lofft 433. Lofft 253. § 10. If fees be created anew after deputies are appointed, not they, but the principal is entitled to them. And if the plt. have a remedy upon a covenant to account, he cannot bring assumpsit for monies had and received, for he has a remedy of a higher nature; and if the deputy's duties are increased, it is only a reason for a new contract. 11. In levying an execution the deputy took more fees than the law allowed; held, an action lay against the sheriff for this act of his deputy; nor was it necessary to shew that the sheriff recognised the act of his deputy, 3 Wils. 399; 1 D. & E. 148, 159. 12. The sheriff is not held to pay the costs if he acts bona fide, and requests the court's assistance when he tries the question of the deft's. bankruptcy between his assignees, and the plt. is liable for his deputy's breach of a penal statute, 11 East 25, Sturmy v. Smith. 13. The officer is not entitled to poundage till the goods are sold, nor can he detain for fees, 1 Ld. Raym. 4; nor is I Salk. 330. the sheriff entitled to fees of poundage if the judgment be irregular; see Earl . Plummer, and Peacock v. Harris; nor can a deputy sheriff refuse to execute process till his fees are paid. 2 D. & E. § 14. If it appear by the sheriff's return of an execution 148, 159, more fees have been taken for the levy than allowed by staWoodgate v. Knatchbull.tute, 29 El. c. 4, the sheriff is liable to an action on that Dougl. 40. statute for treble damages at the suit of the party grieved; see 2 W. Bl. 832. Johns. R. 15. The sheriff summoned a jury for the Circuit Court, 125, Woods but was out of office before the return of the venire. Held, he was entitled to fees for summoning the jury, but not for the return of the venire. v. Gibson, 5 Johns. R. § 16. The attorney is liable for the sheriff's poundage on a 252, Adams v. ca. sa. on serving the execution, and without resorting to the Hopkins. party;-may be a good rule, if the attorney employ the sheriff, CH. 31. but quære, if the party himself employ him. 17. Honorary fees. The origin of them, so far as our accounts extend, was among the ancient Romans, in some cases derived by them from the Greeks. Among the Romans they originated in patronage, in the intimate and peculiar connexion there was between patron and client, where in a popular government so much depended on eloquence and good pleading. Each patron had his clients, whom he defended, and whose causes he plead on every occasion, and as in the nature of things there could be no uniform fees or reward regulated by law or otherwise, the recompense the client made to his patron was a matter of honour, regulated not by law, but by the feelings and confidence, the ties of friendship and liberal sentiments, which naturally existed between persons defended and their defenders. This connexion between patron and client was also political, and gave the great men in Rome, especially the able orators and pleaders, an influence and standing among the common people, of which now we can have no just conceptions. Some of the clients were immensely rich, and ardently sought to obtain or to preserve the good opinion of their fellow-citizens in a popular government, and their success very much depended on the exertions of their patrons. Riches, especially in the provinces, were acquired in a manner that often caused their possessors to be vigorously attacked and impeached, and not unfrequently put on their trials to defend them and their characters, and sometimes even their lives, where every thing depended on the most powerful eloquence and pleadings. Hence, the enormous honorary fees given; such as authorized Cicero to boast, that he received more than a million of dollars, our money, from his clients in presents and legacies as honorary returns for his pleadings for them, and so as to Lucullus Atticus and others. Middleton's Life of Cicero, 2 vol. p. 514. 18. The Roman laws at times interposed in regard to lawyers and their fees. For a long time, and as late as the time of Cicero, only one was allowed to argue on each side. This circumstance led to immense honorary fees, or presents, or legacies, in order to retain or secure the very first pleaders in great causes. For a long time the patroni (defensores) received no fees as such in particular causes, but all in presents and legacies. 19. In Pliny the younger's time, two pleaders were allowed on each side in cases of impeachments, and they received fees in his time. And the younger attornies were employed by the eminent counsel in their causes in the usual order of the business of the bar. But some emperors after Pliny's CH. 31. time strictly forbid fees to be taken. This prohibition led of course to presents and legacies from clients to counsel, espepecially where life, character, or great interests were in danger. Justinian limited the præmium honorarium, not to exceed a hundred aurei for each cause; but if nothing was promised or paid, a reasonable compensation was recoverable. Dig. 3, 1, 4. The office of counsel being viewed as public, a counsellor was compellable to undertake and act in a party's cause. Dig. 50, 13, Cro. El. 59, 3 Bl. Com. 20. At the Roman bar and in conducting causes, there were several grades of persons naturally employed. The counsel were patroni or defensores as already mentioned. They were the orators who argued the causes: 2. Advocati, that is, assistant counsel: 3. Procuratores, proctors who acted for clients that were absent, and managed their business for them under special powers: 4. There were attornies or agents, gestores negotiorum, appointed generally 5. Also clients had on the spot their cognitores to help them manage their affairs. It is not to be understood the inferior or even middle grades thus employed in conducting suits, prosecutions, and impeachments, received only honorary compensation. Far otherwise, as in modern times, they received the quid pro quo or reasonable reward, as ascertained by law or by custom, and only eminent orators and pleaders generally depended on the honorary rewards as presents and legacies, and it is doubtful if even these did, in common and ordinary business on which the law or usage could conveniently set a price. In Rome, as in other free and rich countries, there was one common reason (among others) for honorary fees or compensation. No law or custom could fix a uniform standard of compensation, so extremely various were the circumstances of great causes and of counsel and clients concerned in them. Thus honorary fees in certain cases very naturally grew out of litigation and the connexions above stated. This natural distinction between honorary and other fees has been, in substance, continued down in Europe to the present time, and in a considerable degree in this country, with an exception as to legacies and political considerations. In Chorley v. Bolcot the plt's. counsel viewed the Roman practice as the foundation of the English. 21. In this case of assumpsit three judges said that it was adjudged in the exchequer, that a promise of £10 in consideration of counsel given to one, was good, though the counsel had been given before. But in 2 Leon 111, it is said, fees to counsel are now considered as quiddam honorarium; a present, not a payment; not recoverable by law, and if paid, not recoverable back. The ancient Roman orators had their clients, and practised gratis, for honour merely ; at most, to gain |