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Heath v. Bates.

a writ at the attorney's request, if every clerk of court who enters a case for him upon the docket, is to look only to his clients as their debtors, an inconvenience will be wrought that has no commensurate good to counterbalance it. It is true that an officer can refuse to serve a writ unless his fees are paid or secured, but this right is practically of little advantage to him. A writ is sent him by mail by an attorney of some other town or county. It requires immediate service. The officer desires to be prompt and faithful. It is putting upon him an unnecessary burden to require him to take the risk of losing his fees, or to wait till he can hear from the plaintiff or his attorney at the risk of losing all opportunity to make service of the writ. It is perfectly easy for the attorney, if he does not wish to be personally responsible, so to inform the officer when he gives him the writ. It is to be borne in mind that the attorney knows the plaintiff, while the officer may know nothing of him. It is generally the case that an attorney has a running account with certain officers who serve a large number of writs for him, and who would be put to great inconvenience if compelled to make their charges in each case to the plaintiff, especially when they have no knowledge that the attorney has received actual authority to bring the suit. The attorney has already his account with his client, knows what the fact is as to his authority to bring the suit, and could without inconvenience have required a prepayment of the expenses of instituting the suit, and ought to have done

In

every view of the case the rule seems a reasonable one, and the only reasonable one, that an attorney placing a writ in an officer's hands for service, is to be regarded as personally requesting the service and as personally liable for it, unless he expressly informs him that he will not be personally liable, or there are circumstances which make it clear that that was the understanding of the parties.

This is really no departure from the general law of agency. An agent can always bind himself personally where such is his intention. Here it is merely held to be a fair inference from the act of the attorney in placing the

VOL. XLIX.-44.

SO.

Heath v. Bates.

writ in an officer's hands and giving no notice to the contrary, that he intends to be personally liable for his fees. And this inference undoubtedly accords with the actual fact in the great majority of cases. Indeed the exceptions are probably so few as hardly to be entitled to consideration.

This view is sustained by nearly all the authorities, both English and American. In Walbank v. Quarterman, 3 Com. Bench, 94, MAULE, J., says:-“ The inconvenience would be prodigious if it were held that the officer must look to the client for his fees, and there is no inconvenience in the other course.' In Judson v. Gray, 11 N. York, 413, the court, in holding that an attorney is not personally liable for the fees of a referee, expresses doubt whether upon the general principles of agency an attorney should be held liable for the fees of an officer, yet says that there are special considerations affecting that question, and that, in view of repeated decisions in that state, it should be considered as settled that an attorney is liable for the fees of an officer in the absence of notice to the contrary. See also Weeks on Attorneys, 232; Scrace v. Whittington, 2 Barn. & Cress., 11; Foster v. Blakelock, 5 id., 328; Robbins v. Bridge, 3 Mees. & Wels., 114; Brewer v. Jones, 16 Exch., 655; Adams v. Hopkins, 5 Johns., 252; Ousterhout v. Day, 9 id., 114; Campbell v. Cothran, 56 N. York, 279; Tarbell v. Dickinson, 3 Cush., 346; Fowle v. Hatch, 43 N. Hamp., 270.

A new trial is not advised.

In this opinion the other judges concurred.

McArthur v. Morgan.

GEORGE MCARTHUR AND OTHERS vs. GEORGE MORGAN

AND OTHERS.

Petitions under the flowage act are to be served by citation, in the same

way that bills in equity were served before the passage of the practice

act. Evidence is not admissible against a petition under the flowage act, that

the petitioners are pecuniarily unable to avail themselves of the right

sought, if it should be granted. It is no objection to such a petition, that the petitioners hold a perpetual

license, upon the payment of an annual rent and under certain limitations, to flow the land of one of the respondents, and that, by the granting of the petition, they would acquire the right, for compensation prepaid, to impose upon the land a permanent easement, free from the

limitations of the license. Where one of the respondents, eight years before the hearing upon such a

petition, purchased a mill-site, now sought to be flowed, on which he then intended to build a mill, but towards which he had done nothing, it was held to be a question of fact for the committee whether that intent

still existed or had been abandoned. Where a committee has left undecided certain questions of fact on which

evidence has been received by them, it is not the proper course for the court to hear evidence and decide the questions, but the report should be re-committed for a further finding by the committee upon the evidence already received.

PETITION under the flowage act; brought to the Superior Court. Referred to a committee; report by the committee in favor of the petitioners; remonstrance against the acceptance of the report; remonstrance overruled and petition granted; (Sanford, J.) Motion for a new trial and motion in error by the respondents. The case is sufficiently stated in the opinion.

S. Tweedy, with whom was H. Scott, in support of the motion.

A. H. Averill, contra.

PARDEE, J. This is a

This is a petition under the flowage act. The petitioners are owners of land through which runs a stream, and have a mill thereon; their title is derived

McArthur v. Morgan.

through sundry conveyances from Samuel Morris. The respondents severally own land above them; on that owned by George Morgan there was once a mill and now is a pond; their title is derived through sundry conveyances from Caleb Benedict. In 1831 Benedict granted to Morris, and to his heirs and assigns forever, for an annual rent, license to maintain a dam, and carry the water thus detained to the grantee's mill by a canal excavated on the land of the grantor; the water to be drawn from the east side of the stream, at or near the grantor's saw-mill, and in such manner as not to damage it; the license to continue as long as the rent should be paid, unless the licensee should give three months notice of his desire to terminate it and pay the damages resulting from the excavation of the canal. The petitioners are now drawing water under it. They propose to erect upon their own land a dam of the same elevation as that of the one which detains the water now drawn to their mill; and under the flowage act have brought their petition to the Superior Court for leave to submerge the dam now on the land of Morgan.

The petition was referred to a committee for a finding of facts; a report was made; the respondents remonstrated against the acceptance thereof; upon hearing, the court determined that the remonstrance was insufficient, overruled it, accepted the report, and granted the petition. The respondents filed motions for a new trial and in error.

By statute, (Gen. Statutes, p. 472, sec. 1,) flowage petitions are to be served as petitions in equity then were; that is, by citation. Gen. Statutes, p. 396, sec. 1. The practice act, which took effect January 1st, 1880, provides (section 20,) that “mesne process in civil actions shall be by writ of summons or attachment.” The respondents insisted that this act put an end to the service of flowage petitions by citation, that inasmuch as the petition in this case was served as a citation the service was without authority of law, and that it was the duty of the court to erase it from its docket. This motion was properly denied. The practice act, section 32, provides that section 20 shall not affect

McArthur o. Morgan.

more.

flowage petitions. Moreover, the 29th section of the practice act, mentioning by number and page the sections of title 19 of the General Statutes which it repeals, does not include section 1, page 472, which permits the service of flowage petitions by citation. The court had jurisdiction of the cause.

The court also properly confirmed the action of the committee in refusing to permit the respondents to prove that the petitioners were insolvent and pecuniarily unable to avail themselves of a decree granting their petition. The flowage act does not, and therefore the court cannot, require these petitioners either to prove or guarantee their ability to complete that which they ask leave to commence. Moreover, as a condition precedent to the taking of the land, the act requires them to pay these respondents not only its full value, but in addition, by way of gratuity, one half as much

If their land is not taken they suffer no loss; if it is, they receive payment and the gratuity. As a matter of protection it would seem to be unnecessary that the law should concern itself farther in their behalf.

The petitioners are licensees of the privilege of flowing the land of one of the respondents, and of drawing water thence to their mill under limitations; this privilege to continue as long as they pay the rent reserved and observe certain stipulations. If their petition is granted it will be possible for them, for compensation previously paid, to impose upon such land of the respondents as shall be specified in the decree of the court a permanent easement, free from the limitations attendant upon, and of larger measure than, that maintained under the license-practically to become the owners of the land submerged, and thus add to the power and value of their site. And it being the purpose of the flowage act to furnish opportunity for and inducement to the speedy and exhaustive use of all available water in the state, if under it the petitioners can convert this possibility into a result accomplished, they are not barred from availing themselves of its provisions to secure the greater privilege because they have the less; not even

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