Assumpsit, by the plaintiff, a deputy sheriff, for his fees for the service of writs. The action was brought in the police court of Somersworth, where the plaintiff had judgment and the defendant appealed. The writ is dated July 14, 1890. The defendant objected that the plaintiff could not show what his fees were without producing the writs or accounting for their absence. If appeared that the plaintiff returned the writs to the defendant’s attorney.
Cited by 1 later decisions — most recently December 1901
¶1
The objection that the plaintiff could not show what his fees were without producing the writs which had been served and returned to' the defendant’s attorney from whom they had been received, requires no consideration ; nor is the plaintiff’s right of recovery affected by the agreement between the defendant and the attorney that the defendant should be subjected to no cost or charge on account of any claim unless it should be collected. The plaintiff had no knowledge of the agreement, and performed the service relying upon the credit of the defendant and not upon that of the attorney. This he might properly do, for although, in the absence of notice to the contrary, an attorney is personally liable to an officer for his fees on writs which he commits to him for service
(Towle
v.
Hatch,
43 N. H. 270, 272,
Tilton
v. Wright, 74 Me. 214,
Heath
v. Bates, 49 Conn.
342
— S.
C.,
44 Am. Rep. 234), the officer may, nevertheless, waive his right against the attorney, and look to the client for his fees, if he so elect; but that election being once made, he must abide by it.
Eastman
v.
Coös
Bank, 1 N. H. 23, 27.
