influence, "and so likewise it is established with us," (cites Cн. 31. Davis, Pref. 22, and 1 Ch. R. 38,)" that a counsel can maintain no action for his fees; which are given not as locatio vel conductio, but as quiddam honorarium; not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation," cites Davis 23; and A. D. 47, by a decree of the Roman Senate, advocates were allowed Tacitus' Antheir honorarium, never to exceed 10,000 sesterces, about nals, Lib. 11, $355; this decree was passed in consequence of extravagant fees demanded. Tacitus says Samius had retained Suillius, with a fee of ten thousand crowns; and other very extravagant fees were complained of. See the arguments in the senate, for and againts, 2 Mur. Tacit. p. 9, 10, 11; by these it appears that some few rich orators employed their eloquence for honour and influence only, among the Romans.

s. 1, &c.

Berkenhead

v. Fanshaw.

22. Assumpsit by an attorney for fees and disbursements 1 Salk. 86, in defending suits in an inferior court, also, in B. R. and he recovered. Deft. pleaded 3 J. 1, ch. 7, directing attornies to give bills to their clients one month before they sue them. Held, this act did not extend to inferior courts, nor to any, when a special promise is laid, or there is an insimul compuAs neither appears in this case, the attorney must have recovered on an implied promise, at common law. So Salk. 89, is every day's practice in this state. So Grigg recovered on Grigg's case, the same principle, and the court refused to refer an attorney's bill for business done in one court, to a master in another. The 2 Geo. II. c. 24, as to giving bills, does not extend to conveyancing, but he recovers as above. Bull. N. P. 145.

tassit.

and Salk. 596

Fees &c. A.

Fees are considered certain perquisites allowed to officers 2 Bac. Abr. in the administration of justice, as a recompense for their ser- Cites Co. L. vices, ascertained by statute or by ancient usage: paid by the 368.-2 Inst. king anciently. This rule held only to his officers in the ad- 176, 208, 209. ministration of justice.

Fees A.-21

§ 23. All fees allowed by statute become established fees, 2 Bac. Abr. and officers may have proper actions for them. So are all H. VII. 17.that have been allowed by courts of justice to their officers, Co. L. 368. as a recompense for their labour and attendance. See Debt,

ch. 144, a. 15.

-2 Bac. Abr. Fees.

24. It clearly is extortion for any officer to take more for 10 Co. 102. a. his fees than the law allows; or before his fee is due, that is, before the service is done by him; and for extortion he may be indicted. The officer must perform the service directed to be done by his precept, and then claim his fee.

25. Pilot's contract for extra fees, how void. In New- 1 Caines' R, York a branch pilot contracted to assist a vessel in distress, 104, Callaghan v. Halfor a certain extraordinary compensation. Held void, as the let. statute of the state made it his duty to assist in such cases for

CH. 31. his legal fees: further the court thought that such contracts might lead to oppressions. This case establishes a principle for many cases.

2 Johns. R. 193.-See ch. 49, s. 32.

2 Day's Ca.

528,

DeFor

26. Promise by an officer agninst law, is void; as where a constable, having an execution against the deft. issued from a justice's court, promised him, if he would deliver property as security, not to sell it under thirty days; this promise was contrary to the duty of the officer, so against law and void.

27. A contract between a sheriff and his deputy to allow est v. Brain- yearly a stated sum to the sheriff, in consideration of the appointment, is legal and operative.

erd.

1 Caines' R. 13, Gilbert v. Frazier. Id. 102, Hildreth v. Ellice.

1 Caines' R. 195, per Livingston J.

9 Johns. R.
114, 115,

Ousterhout v.
Day.

9 Johns. R. 328.

§ 28. Fees on levying a fine cannot be collected of the party; but must be charged by the sheriff in his account.

29. If he levy on property he is entitled to his poundage on the full sum endorsed, if so much in value be levied on, though he do not sell, by reason of an amicable settlement made by the parties.

30. But he loses his fees on a writ against the person, if countermanded before served, though the officer may have been several times to the deft's. house to arrest him.

31. How the officer for his fees may look to the attorney in the action. This he may do, though he may also look to the client in the first instance, and if he elect to sue the attorney without a demand on the client, especially after five years elapsed, and no such demand made, there is a waiver of his right to call on the client.

32. The sheriff has his reasonable fees and expenses for bringing up a former sheriff, on an attachment in not returning process.

CHAPTER XXXII.

See Deceits, and Agree

ments, Ch. 9, a. 20, &c.

ASSUMPSIT, FRAUDS, THIS ACTION HOW AFFECTED BY FRAUD.

ART. 1. General principles. This action of assumpsit can never be defeated by fraud in defence.

§ 1. This subject has been considered already in some Statutes &c. measure, and is here introduced in order to notice a few genas to frauds; eral principles, material in this, as in many other actions; as as to 2 H.III. the plt's. action may often be founded on a contract tainted with fraud, or said to be so. It is material to see how fraud

ancient ones

Сн. 32.

Art. 1.

1 Burr. 396.-

affects contracts, and how far actions may fail or not, by reason of it. 4 H. VII. ch. 17; 6 E. I. ch. 11, against fraudulent recoveries. 21 H. VIII. ch. 15, same. 13 E. I. ch. 4, to preserve dower. 9 R. II. ch. 3; 5 E. III. ch. 6 &c. § 2. It is a general principle that "fraud or covin in judg- Ld.Mansfield. ment of law, may avoid every kind of act." And "what cir- 2 Mor. Ess. cumstances and facts amount to such fraud or covin, is always 63, Bright, a question of law; and courts of equity and of law have a exr. v. Eynon. concurrent jurisdiction to suppress, or relieve against fraud;" 427. and there must be the same construction in law and equity.

-Lofft. 331,

196, 201.

3. And a judgment, award, or deeree, obtained by Bac. Abr. fraud shall be set aside as null and void, except as to the par- 1 Lofft. 427, ties to it. Chipman's R. 63.

476.

§ 4. Fraud invalidates as much in a court of law, as in a 3 Co. 77.court of equity: "whether a transaction be fair or fraudulent, 1 Vern. 443. is often a question of law;" "it is a judgment of law on the facts and intents."

5. The fraud of the agent is the fraud of the principal, and equally avoids the act, fraudulently done.

4 T. R. 39,

Doe v. Martin.

v. Kennett.

§ 6. The statute of 13th. of El. relates to creditors, and Statutes 13 of the 27th, to purchasers, which see at large in a subsequent El. and 27 of El.-Clavey r. chapter. These statutes have been adopted here, as they reHayley.spect the avoiding of contracts; and even if not, the law is as laid Cowp. 427, down by Lord Mansfield, in the great case of Cadogan v. 434, Cadogan Kennet, to wit: "the principles and rules of the common law, Hawk. P. C. as now universally known and understood, are so strong against ch. 71.—2 fraud in every shape, that the common law would have attain- Bin. 154.— ed every end proposed by" these statutes, that will defeat ev- 404. ery deceitful practice in defrauding another of his rights.

2 Johns. R.

Jackson v.

§ 7. Cases. An insolvent person assigned over his effects 4 T. R. 166, for his creditors, and the plts. signed under a secret agreement Lomas.that they should have their whole debt. The court held that 6 T. R. 146, this agreement was fraudulent, and that no action lay upon it. Fiese v. Ran.

It was a coercion on the deft. and a fraud on the other creditors; but otherwise, if only a share had been agreed for. A sale of goods by covin, even in market overt, is void. Cro. El. 86. 2 Inst. 713.

dall.

Duchain.

Rose.

8. Assumpsit on a note for £15. The plt. wished to get 3 T. R. 551, £100 for his goods; this sum the defts. could not advance, Jackson v. but they contrived to sell them apparently to one Welsh, for 4 East 372, £70, to get him to advance the money for the deft., the real Leicester v. buyer; and the deft. privately gave this and another £15 note 6 Ves. 300, 3 to the plt. for the goods. This private agreement was unknown to Welsh, and was a fraud upon him, to induce him to advance his money; and as the plt. was a party to the fraud, it was held that he could not recover.

do. 456.

1 Anstr. 202. -1 Atk. 106.

1 H. Bl.

647.

Сн. 32.
Art. 1.

Montefiore.

9. In this case it was decided, that if on proposals of marriage between two persons, a note is given by a third person to one of them, without any consideration, to make the man 1 W. Bl. 363, appear rich, and to promote the match, but with no intention Montefiore v. it shall be paid, is fraudulent as to the party deceived; yet it is valid against the giver; "for no man shall set up his own iniquity as a defence, any more than as a cause of action. And an action may be maintained against him on such a note; and when arbitrators ordered such a note to be given up, the court held that they were mistaken in point of law, and directed their award to be set aside.

12 Mod. 558.

Fraud is a question of law, especially if no dis

facts.

9 Johns. R. 337.

Wils. 260, Royal v. Rolle, and 3 Burr. 831, cited New.

10. So if one who is solvent, under a pretence of insolvency get a debt abated, it is a fraud in equity.

11. So if one take a mortgage of goods, debts, &c. and does not take possession, it is fraudulent, and he cannot recover. But there are some exceptions to this rule, which see, pute as to the post. As where one Harvest and Stevens were partners in a brew-house, and in the utensils, goods, and debts. Harvest for a valuable consideration mortgaged his half of all to Potter; but Harvest and Stevens continued in possession, and carried on the business as before; Harvest appearing to be the owner, and acting in all respects as owner, and as he used to do before he made the mortgage-he became a bankrupt. on Con. 376. Held that Potter had no title against the assignees, to Harvest's half of the personal estate; for a "mortgagee of goods moveable, and choses in action, is the true owner thereof," and the same ought to be delivered to him, as much as may be, "by delivering the goods themselves specifically, or the key of the ware-house wherein they are, with the possession thereof, and by delivering the muniments, books, and writings, relative to the choses in action, and enabling the mortgagee to reduce the same into possession by action or suit." As Potter did not do this, but suffered Harvest to remain in possession as above, it was giving the mortgagor a false credit, and so, fraudulent against creditors, in respect to the moveable goods, and choses in action.

6 T. R. 263, Cooling v. Noyes.

8 Co. 262, Turner's case.

-2 Hen. & Mun. 189.-1 Binn. 502.

§ 12. If a creditor agree with a debtor to take 5s. in the pound, on his assurance that his other creditors will do the same, and they will not do it, and this assurance being false, no action lies on the agreement; nor is it any bar to the former right of action. Any gross misrepresentation of facts makes the contract void. 4 Dallas, 250.

13. In this case A recovered a just judgment against an administrator, for £100, and would have released for £60; the administrator preferred to delay this release, to plead the judgment for £100 against creditors. Adjudged to be as to them a fraud and deceit. The administrator ought not to save

the £40, to his own use. He is a mere trustee for the creditors, and ought to settle the estate faithfully, for their benefit. The usual marks of fraud are, First, where the gift of one's goods is general. 3 Co. 80, case of Twyne.

CH. 32.

Art. 1.

Second. If the donor or grantor continue to possess and 2 T. R. 596. use the goods.

Third. If the deed, or bill of sale, be made in secret. Fourth. If the deed be made on any implied trust or confidence in favour of the donor or grantor.

3 Co. 81, Case. Hob. 1. Twyne's

-Law Gram.

115. 2 Bos. & P.

Fifth. If the deed, or sale, or gift, be made while an action is pending. Therefore, if a man's goods be had in satis- 59-6 Co. faction of a debt, it is best to have the thing done in a public 72.-2 Esp. manner, before witnesses of credit, and the goods fairly ap- Cases 205. 290.-1 Esp. praised at their just value.

1 Camp. R.

§ 14. Though a grant of lands or goods be to deceive cred- 333. itors, and so is void as to them; yet it is good against the grantor and his representatives. So an act in court may be void for fraud. 2 Bl. Com. 441; Law Gram. 115; 3 Co. 77, Farmer's case; 2 Cro. 271.

15. If one have a term, &c. and make a voluntary dispo- Cowp. 278, sition of it, privately, and then offer it to me in mortgage for a Chapman v. Emery & ux. debt justly due to me, and I, having a hint about that disposi-4 Cruise tion, ask him concerning it, and he denies it, this is a fraud; 379, Evelyn and his disposition is void within the 27th of El. ch. 4, and Í v. Templar.hold the term. A mortgage is a purchase within that statute. This mortgage was three years after the settlement, 4 Cruise 379.

4 Cruise 380.

16. In this case of assumpsit for goods sold and delivered 2 T. R. 287, it was decided, that if a creditor take an absolute bill of sale Edwards v. Harben, exr. of the debtor's goods, but agrees to leave them in his posses---4 Binn. 258. sion for fourteen days; in that time the debtor dies, whereupon the creditor takes and sells the goods. Held, he is executor de son tort; for the debtor's continuing in possession is inconsistent with the deed, and fraudulent against creditors; that it is a general rule in the transfer of chattels, that the possession must accompany and follow the deed. Hence, if the conveyance be absolute, the possession must be delivered immediately; if conditional, it will not be rendered void by the vendor's continuing in possession till the condition be performed. The delivery of a cork-screw in the name of the whole had no effect. If I buy a debtor's goods at the sheriff's sales, I may leave the debtor in possession and yet have title, as where one Aburn's goods were taken in execution and put up to sale, and the plt., his brother-in-law, bought them and took a bill of the sheriff, but permitted A to remain in possession; 590, post. held, the plt's. title was good against Aburn's other creditors; here was no view to defeat creditors.

2 Bos. & P.