Tanner v. Croxall. he proceeded to try the cause, in the absence of the defendant, and gave judgment against him. It is true, the justice in answer to a rule of this court, calling on him to certify in relation to the matter, says that he sent notice to the defendant to attend and be present at the trial; but when, or by whom, or in what mauner such notice was sent, or whether it reached the defendant, in time for him to attend, or ever reached him at all, does not appear. It is unimportant however, whether the defendant had notice or not; the proceeding was erroneous, and the judgment. must be reversed upon the authority of Gulick v. Van Tilburgh, 1 Harr. Rep. 417, in which it was decided by this court, that if a jury cannot agree upon their verdict, and are dismissed by the justice, his jurisdiction is at an end in that cause: he cannot issue a venire de novo, nor afterwards try it himself, without the consent of the parties. He should record the fact, and dismiss the suit; leaving the plaintiff at liberty to commence a new action. Let the judgment be reversed. FORD, WHITE, and DAYTON, Justices concurred. NEVIUS, Justice, absent. Judgment reversed. TANNER v. CROXALL.* On demurrer to declaration. In debt, for penalties for illegal charges of costs. This was an action of debt for three hundred dollars, the aggregate amount of ten penalties of thirty dollars each, for charging in a bill of costs, for services not actually rendered, or for services not allowed by law. Elmer's Dig. 424, pl. 27. The bill of privilege contains ten counts; each count being for a distinct penalty for a specified over-charge: but all the items com*Decided orally at September Term, 1839. Tanner v. Croxall. plained of, are contained in one bill of costs. The defendant demurs to the whole bill; showing several matters for cause of demurrer namely that the plaintiff before commencing this suit, had not appealed from the taxation of the clerk: that it was not averred in the bill of privilege, that the over-charges were wilfully made, nor that he had taken any greater fee, or reward for services done by him, than was allowed by law. And lastly that the bill of privilege demands ten penalties of thirty dollars each, whereas only one such penalty, if any, has been incurred. The plaintiff having joined in demurrer, the cause was argued, by Mr. Jeffers, in support of demurrer, and by W. Halsted, contra. HORNBLOWER, C. J. The statute Elm. Dig. 424, enacts that if any attorney or solicitor shall charge in his bill of costs, for services not actually done; or for services not allowed by law; or take any greater fee or reward for services rendered, than is allowed by law, he shall pay to the party aggrieved, $30, to be recovered by an action of debt. The complaint in this case is that the defendant has charged for services not actually performed; and it is not necessary that the plaintiff should aver in the declaration that such charges were knowingly or wilfully made. Nor is it necessary that the plaintiff before he brings his action should appeal from the taxation of the clerk, if there was one, and establish the over-or the unfounded charge, upon a retaxation. It is not necessary that the bill should be taxed at all, in order to entitle the plaintiff to recover; nor does it appear by the pleadings in this case, whether the bill of costs was or was not taxed by the clerk. The object of the statute is to guard suitors against impositions by Attorneys and Solicitors; and if the suitor is charged in the bill of costs delivered to him, for services not rendered, he is thereby aggrieved, for he must either pay the unlawful demand, though he may be a very incompetent judge of its legality, or subject himself to be proceeded against for it, by suit or by execution. The act intends to arrest such improper demands, in limine. and the attorney who does know, Kinney v. Muloch. or ought to know what services he has rendered, and what the law allows him for such services, must at his peril make out and present a true bill. How far, an unintentional error, might subject an attorney to a penalty under the statute, it is not now necessary to decide. The other cause assigned for demurrer, although true as a legal proposition, constitutes no objection to the declaration. In this action and upon the matters set forth in this declaration or bill of privilege, the plaintiff can recover at most, but for one penalty. The words of the statute are, that if the attorney "shall charge in his bill of costs, for services not done, &c." he shall pay to the party aggrieved, $30; not $30 for each and every wrong charge, but for charging in his bill, for services not performed, whether more or less in number. The plaintiff therefore at most, can recover but $30 in this case, if at all; nevertheless the demurrer must be over-ruled, with costs. Demurrer overruled, with costs. KINNEY v. MULOCH. In case. On motion for discharge on common bail. Matter of practice. This was an action for a libel. The defendant had been arrested and held to bail, upon a Judge's order, in the sum of $5000. The defendant, in his own proper person, now moved to be discharged on common bail, on the ground that the writ did not designate any specific cause of action; but commanded the Sheriff to arrest the defendant, " to answer to the plaintiff in a plea of trespass on the case" generally. He argued that upon this writ he might be declared against, in assumpsit, upon a promissory note, or bill of exchange, or upon a special agreement, or for a deceit, or trover and conversion; or even for an injury to lands, Kinney v. Muloch. without force, as well as for a libel or words spoken. That under such a writ, a man might be subjected to great difficulty in procuring bail, not knowing with certainty, the true cause of action. If for a tort, the defendant might find a person willing to be his bail; but not willing to become bail for so large a sum, if the action was on a promissory note or for money lent. Whereas, upon this writ, he could not learn the true cause of action, and he cited 1 Chit. pr. 2; 2 Lill. Ent. 539; 2 East. 308; 3 Green's R. 124; 1 Harr. R. 157; 19 Wend, R. 26. Mr. Whitehead contra. The opinion of the court was delivered by HORNBLOWER, C. J. It is true, that this court, as a general rule, will govern itself in all cases, according to the rules of practice in the King's Bench, as they were established and acted upon in that court, at the time of our becoming independent of the crown; except so far as those rules are inconsistent with our altered circumstances; or have been abrogated by statute or by new and positive rules of this court; or become obsolete and useless; or have been superseded by a long and approved course of practice which has grown up here since the revolution, and has become a sort of common law of our own court. These exceptions, it will be perceived, have swept away a very large portion of the rules that existed in Westminster Hall, at the time of our revolution: nevertheless, there are still many matters of practice, in relation to which, we should be without any rules, if we are not governed by those of the King's Bench, relating to such matters. Such amongst others, is that which was recognized by this court, in Armstrong v. Davis, Coxe's R. 110, which was cited on the argument. In Davison v. Frost, 2 East, 305 the court was governed by an old rule, made in the year 1729, regulating the course of practice on the part of a defendant who had been arrested upon a writ in which the cause of action was "specially specified and expressed." But that rule had been framed under the influence of the statute of 13 Car. 2 Sec. 2 c. 2, which required the true cause of action, to be particularly expressed in the writ-that statute is not in force in Kinney v. Muloch. this State. It was indeed re-enacted here, in the 14th and 15th Sections of the act concerning Sheriffs, passed the 18th March, 1796, Pat. R. 201; but those sections were repealed by an act passed on the 16th Feb. 1820, Rev. L. 669. This repeal was no doubt recommended by Gov. Pennington, who made the revision of 1820, on the ground, that our statute requiring an affidavit of the cause of action, to authorize the arrest of a defendant, Rev. laws, 404; Elm. Dig. 422, had rendered the provisions of 13 Car. 2, useless. Such indeed was the argument of counsel, in Davison v. Frost, 2 East, 305, who insisted that since the statute of 12 Geo. 1 c. 29, requiring an affidavit for bail, (of which, ours above cited, is substantially a copy) it was unnecessary to express the true cause of action specially in the writ, since the defendant could only be held to bail for the sum sworn to and endorsed upon the writ. Lord Ellenborough, however, feeling himself bound by the old rule of 1729, above cited, held the writ to be defective, and discharged the defendant, on common bail.The statute upon which that rule was framed, having been repealed in this State, in 1820, as above mentioned, it has not since that time, (whatever might have been the practice prior to such repeal,) been necessary to specify the cause of action in any writ of capias with greater precision than has been done in this case. Indeed the trespass clause, which originally lay at the foundation of the jurisdiction of the King's Bench, has for more than 20 years past, been held unnecessary in this court, and been entirely omitted by some of our oldest and most accurate practitioners; and though in that matter, as in respect to the specific cause of action being set out in the writ, the practice has not been uniform among the members of the bar; nor indeed have individual members been uniform in their own practice in these matters; yet the very diversity which has so long existed at the bar of this court, as appears by a recurrence to the files of writs, shews, that the court and bar, have not thought it essential to a good writ, to insert either the allegation of a trespass, or to specify the precise ground of action, in the ac etiam clause, with more particularity than is done in this case. Besides, the defendant's apprehensions are fanciful and groundless. He must go the whole length of requiring at least the substance of the |