The plaintiff in an action is liable to the sheriff for the service of the writ. An agreement between attorney and client, unknown to the sheriff, that the client should be subjected to no cost or charge on account of any claim sued unless collected, will not affect the client's liability to the officer for his fees.
BLODGETT, J.
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. Coos Bank, 1 N.H. 23, 27.
Exceptions overruled.
CARPENTER, J., did not sit: the others concurred.