BIRKBECK a. STAFFORD

BIRKBECK a. STAFFORD. Supreme Court, Second District; General Term, May, 1862. Liability of Attorney for Sheriff’s Fees.—Official Certificates.'—Managing Clerk.—Assignability of Claim for Sheriff’s Fees. The attorney is liable to the sheriff, for fees on process delivered to him for execution. In an action by a sheriff to recover his fees for the execution of a warrant of attachment issued as a provisional remedy, the certificate of the justice who issued the warrant is conclusive evidence as to the amount of the sheriff’s compensation. The fact that such certificate is made after the action to recover the sheriffs compensation is brought, does not alter its effect as evidence. An attorney is bound by the acts and declarations of his managing clerk in matters within the scope of the latter’s agency. The claim of a sheriff for services rendered and expenses incurred in the execution of process, is assignable. Appeal from a judgment. This was an action by Abraham W. Birkbeck, assignee of George Remsen, sheriff of Kings county, against William R. Stafford and John Davidson, to recover $263, sheriff’s fees and compensation. On the 22d June, 1860, one Spencer H. Stafford, as one of a firm of attorneys-at-law, of which the defendants were members, caused to be delivered to Remsen, the sheriff, a warrant of attachment issued by Hr. Justice Leonard, as a provisional remedy in an action in the Supreme Court, brought by one Babcock, and in which Stafford’s firm were Babcock’s attorneys. The plaintiff, as deputy-sheriff, had charge of the attachment; and under it seized the bark Ardennes, put a man in charge of her, and from time to time visited the vessel himself.' There were no specific directions given by either of Babcock’s attorneys at the time of issuing the attachment, as to the proceedings to be taken by the sheriff, nor did they direct the placing of a man in charge of the vessel. On the 30th of Juné, 1860, the clerk of Babcock’s attorneys wrote to the plaintiff, at the request of Babcock, to put another man in charge, if actually necessary, but nothing was ever done under this notice. The bark was subsequently claimed as the property of third persons, and in accordance with a finding by sheriff’s jury, was surrendered to the claimants, the plaintiff declining to indemnify against the claim. After the commencement of the present action, and on the 3d of May, 1861, the attachment was returned to and filed with the clerk of the city and county of KewYork. The sheriff assigned his claim March 6th, 1861, and this action was commenced March 19th, 1861. The answer set up, with other matter of defence, the non-joinder of S. H. Stafford as a defendant; but the court had directed that this defence be waived, on excusing a previous default of the defendants. The cause was referred to D. P. Barnard, as sole referee, in June, 1861. Pending the trial, and on July 25th, 1861, the plaintiff procured ex parte from Mr. Justice Leonard a certificate as to the compensation of the sheriff upon the attachment, allowing $258 as reasonable compensation, in addition to the fees established by law. On the 20th September, 1861, on affidavits, and after hearing counsel for both parties, this allowance was confirmed on motion to set it aside, with the exception of $3 directed to be deducted therefrom. On the first day of July, 1860, the defendants’ firm was dissolved, and the charge of the attachment-suit taken by W. R. and S. H. Stafford, of which the sheriff had notice. The referee held that the defendants were liable, as attorneys, for the claim in question ; that the entire claim passed to the plaintiff, under the assignment, by the sheriff, and that the certificate of Justice Leonard precluded any defence as to the amount; and after denying defendants’ motion for a nonsuit, ordered judgment in favor of the plaintiff. From the judgment thereupon entered, the defendants appealed. William R. Stafford, for the appellants. The defendants having acted in the known character of agents, cannot be made liable for the proceedings or expenses of the sheriff on the attachment. 1. The cases in this State which hold an attorney liable for sheriff’s fees are entirely anomalous, and violate all the established rules as to the liability of agents. (4 Cow., 260; 11 N. Y., 408; 2 How. Pr., 105.) 2. They should not be followed except in cases precisely similar', and, can have no effect under the Code. 3. They assume that the law raises two distinct promises: one, by the known principal; and another by his agent. 4. They are contrary to every adjudged case in this country and England. (Judson a. Gray, 11 N. Y., 408.) 5. If followed, they will result in holding an attorney liable not only for the fees, but for the acts of all he is obliged to employ. II. Hone of the assumed grounds for liability in the reported cases exist in the present. 1. The plaintiff’s assignor was not bound to hold the attached property, but could have refused unless indemnified, or paid, or secured his fees. (2 Rev. Stat., 839, § 6; Judson a. Gray, 11 N. Y., 408; Saunders a. Harris, 4 Humph., 72.) 2. The statute (2 Rev. Stat., 4 ed., 189, § 12) provides that the costs and charges shall be paid, not by the attorney, but by the attaching creditor. The next section permits the bond on retention to be given by the creditor, his agent, or attorney. By implication, the liability is fixed upon the principal, and not upon the attorney. III. In no event could the attorney be made liable for the extra compensation allowed by Justice Leonard. 1. The distinction between fees and compensation is clearly made. (2 Rev. Stat., 835, § 21.) 2. The parties liable for, and to whom the sheriff must look for pay, being designated by the statute under which he acts, the sheriff cannot, without express authority, charge his additional compensation to others, or hold them liable. (Camp a. Carr, 6 Wend., 535; Hatch a. Mann, 15 Ib., 44.) IV. There was no proof of such a discharge of his duties, as attaching officer, as would authorize the recovery of his fees by the sheriff. 1. It was the sheriff’s duty to make an inventory within ten days. This was never done. (2 Rev. Stat., 4 ed., 188, § 8.) 2. It was also his duty, at the lapse of thirty days, to sell the vessel. (2 Rev. Stat., 191, §§ 26 et seq.) 3. The sheriff, at the time of the commencement of this action, had not even returned the attachment. Y. The assignment by the sheriff to the plaintiff was wholly inoperative. 1. ¡Nothing passed to the assignee but what the sheriff (the assignor) was legally entitled to at its date. (Murrill a. Lewis, 4 Hill, 635.) 2. The interest of the sheriff was clearly uncertain, until ascertained and determined by the officer issuing the warrant, and until then incapable of assignment. 3. Nor could the plaintiff, himself the deputy executing the writ, purchase the claim from the sheriff. (Hawley a. Cramer, 4 Cow., 717; Currie a. Hart, 2 Sandf. Ch., 353; Mills a. Young, 23 Wend., 314.) VI. The ex-parte certificate of Justice Leonard was improperly admitted in evidence. The question at issue was, What, if any thing, was due the plaintiff on the 19th of March, 1861 ? YH. The declarations of defendants’ clerk were not made in their presence, or authorized by them. They were not shown to have been within the scope of his authority. Nathaniel F. Waring, for the respondent. I. The various findings of fact are fully sustained by the testimony. II. The defendants having had the costs, &c., retaxed on their motion, are concluded from questioning the amount. (Supreme Ct. Rules.) III. The attorney is liable to the sheriff for his fees and expenses. (Opinion of Chancellor in Trustees, &c., a. Cowen, 5 Paige, 510; Adams a. Hopkins, 5 Johns, 253.) IV. The return on the attachment is prima-facie evidence that the service was incurred, and the amount of fees. (1 Cow. & Hill’s Notes, 1093.) V. The officer who issued the attachment having certified to the amount of the sheriff’s compensation over and above his fees, it is final and conclusive. (2 Rev. Stat., 646.) [MAJORITY — By the Court.—Lott, J.] By the Court.—Lott, J. material facts found by the referee are sustained by the evidence in this case, and warrant the conclusion of law to which he has arrived. It has long been settled that an attorney is liable to a sheriff for his fees and compensation on process delivered to him for execution. This principle, although anomalous, was established in Adams a. Hopkins (5 Johns., 253). It was extended by the chancellor to examiners in chancery, in the Trustees of Watertown a. Cowen (5 Paige, 510), and was there said by him to apply to the different offices of courts of record, and was recognized as a settled rule of law in this State, in Judson a. Cray (11 N. Y., 408). The sheriff is by statute declared to be entitled for serving an attachment to the sum of “ fifty cents, with such additional compensation for his trouble and expenses in taking possession of and preserving the property attached as the officer issuing the warrant shall certify to be reasonable.” (2 Rev. Stat., 646, § 38; Code, § 243.) His right to payment of the amount so certified is as fixed as the specific sum of fifty cents named. Whether notice of the application to such officer is necessary to be given to the party liable or responsible therefor, it is not necessary to determine here. It appears by the decision of the referee that an account of the sheriff’s fees was delivered to the defendant before the commencement of this action, that no taxation or certificate thereof was demanded by them, and that the officer, after the certificate was given by him, did, on the 28th day of September, 1861, after hearing affidavits and hearing counsel for both parties, order that the same be affirmed, after the deduction of three dollars from the compensation previously allowed by him for such trouble and expenses. Although this order is not set forth in the case, it is referred to by the counsel of respondent in his points, and no question has been made as to the fact by the appellants. I therefore assume it was made. It is true that the certificate was not made till after the issue was joined in this action, but that is immaterial. The services had been rendered, and the right of action therefore had accrued before the suit was commenced. The certificate was merely an adjustment or a liquidation of the amount to which the sheriff was entitled, but it did not create or confer the right itself. That was complete as soon as the service had been performed, and there can be no doubt that the defendants in this action, under the rule of liabilities of attorneys, to which I have referred, are chargeable with and responsible for those services. It fully appears that John J. Post, who delivered the attachment at the sheriff’s office, was the managing clerk of the firm of Staffords &.Davidson, by whom it was issued, and his acts and declarations admitted in evidence were such as fell within the scope of his agency, and the firm are affected thereby. It is no objection to the plaintiff’s right of recovery that Spencer H. Stafford, then one of that firm, is not made a party defendant. It appears in the case that the defendants, against whom a judgment by default had been entered, were permitted to come in and answer, on the condition that they should waive that objection. It can consequently not be relied on or made available now. It does not appear on the face of the complaint, and cannot be considered as taken by the answer, and must be deemed to be waived. (Gode, § 148.) The sheriff’s claim was duly assigned to the plaintiff, and I see no reason, on the ground of public policy or otherwise, why the assignment is not valid, or available to the plaintiff. It was not a transfer of fees or compensation to be earned, but of an existing claim for services rendered, and expenses incurred previous to that time. These views dispose of the principal questions raised by the exceptions taken on the trial, and urged on the argument. The rest have been examined and fully considered, and none of them, in our opinion, are well taken. The judgment must therefore be affirmed, with costs. Present, Brown, Sorugham, and Lott, JJ.