Mumford v. Hawkins

By the Court, Beardsley, Ch. J. It was provided by a former statute of this state, but which is not now in force, that no action should be commenced by any attorney for the recovery of his fees or charges, until eight days after service of a bill of such fees and charges on the party to be charged therewith. (1 R. L. 417, § 9.) The English statute on the same subject required such bill to be served at least one month before suit was brought upon it. (1 Tidd’s Pr. 326.) Where a bill had been served as the statute required, and an action was brought to recover the amount, the defendant was not allowed to con [358] test the items on the trial of the cause, as he could have procured the bill to be taxed by application to the court at a seasonable period. (Scott v. Elmendorf, 12 John. 315.) So too where a bill of costs has been taxed on regular notice to the party, he cannot, in an action on the bill, litigate the items as taxed. (Platt v. Halen, 23 Wend. 456.) These are well settled rules, but I do not see that they authorized or can sustain the decision of the judge that the taxed bill of fees claimed by the plaintiff in this case, was legal evidence against the bank. There is no analogy between the cases, for here the bill had not been served, nor was it taxed on notice to the party sought to be charged with the amount. If the bank could have applied to the court of chancery for a taxation of the master’s bill, there had been no opportunity to do so in the present case, as the bill had not been furnished. It seems to me, therefore, that this taxed bill was improperly received in evidence. The bill as made out was the act of the plaintiff alone, and could prove nothing against any other person. Nor could an ex parte taxation bind the bank, which was in no sense a party to that act of the vice chancellor, whatever might have been its effect if notice had been given. I am unable to see any principle on which this bill was competent evidence against the defendant, and for the error in receiving it as such a new trial should be had. It was not denied that Benedict was president of the Exchange Bank of Genesee, when the petition in chancery was presented, and the examination founded thereon took place. The petition was by said Benedict as such president, and if he was authorized to act in that matter for the bank, the proceeding throughout, must be regarded as carried on for the benefit of the bank itself. And in the absence of all proof to the contrary, we think it must be assumed that the president was duly authorized to institute and carry on that proceeding for the bank. (Amer. Ins. Co. v. Oakley, 9 Paige, 500, 501.) There was nothing shown on the trial to repel the presumption of such authority, but much to confirm it. The president was one of the finance committee of the board of directors of the [359] bank, and had acted as agent in procuring state stock. The cashier, who was the principal financial officer, had, as was shown by his letter, employed or authorized the employment of the solicitor to carry on the chancery proceeding, and the president had for several weeks attended the examination directed by the chancellor upon the matters stated in the petition. Upon the whole, therefore, we are of the opinion that on this point the evidence was quite conclusive, and left ¿10 ground on which the jury could lawfully find that the proceeding in chancery was not authorized by the bank. There was no error in refusing to submit this question to the jury as asked on the part of the defendant. The offer by the defendant’s counsel, to show that the directors of the bank were informed in 1841 of the petition and the proceedings thereon, and then repudiated the same and a Compromise which said Benedict had made with the Clinton Bank, was properly rejected by the court. The offer was not to show an original want of authority on the part of the president to institute the proceedings, nor, from the terms of the offer, can it well be understood that the directors first heard of the petition in 1841; but however this may be, the fact that the directors then refused to ratify what had been done by the president was not admissible evidence against this plaintiff. As the taxation of the bill of fees was of no effect against the bank, it was not a case in which the court should have directed the jury to allow interest. There should be a new trial. Ordered accordingly.