[Ladd v. Shattock.] Ladd v. Shattock. Statutory Action for Damages, for Cutting down Trees. 1. Authority of agent.-Authority given by a landlord to his tenant, to clear land for cultivation, or to use the land and take care of it, does not confer on him power to sell the growing timber on such parts of the land as he does not clear. 2. Same; burden of proof.—One who deals with an agent, is bound to know the extent of his authority; and when he justifies or defends under permission given by an agent, he is bound to show the agent's authority to give it. APPEAL from Circuit Court of Jackson. Tried before Hon. JOHN B. TALLY. This action was brought by Richard P. Shattock, against Vincent D. Ladd, and was commenced on the 30th October, 1885. The plaintiff died pending the suit, and it was revived in the name of his administratrix. The original complaint contained counts claiming statutory damages for cutting and carrying away thirty pine trees from plaintiff's land, without his consent (Code, § 3296); and another count was added by amendment, claiming only the value of the trees. A trial was had on issue joined, and resulted in a verdict and judgment for plaintiff, for $200, with costs. The plaintiff claimed the land under a patent from the United States, which was dated December 5th, 1884; and the defendant justified under permission alleged to have been given him by the tenant in possession, to whom he paid $10 for the trees cut and carried away. One Kennamer, the tenant, who seems to have been living on the land when plaintiff's patent was issued, testified on behalf of defendant: "Shattock came to me, soon after I moved on the place, and said he was glad I was there, and said that he wanted me to stay. I told him I must have something to live on, and asked him about using some of the timber. He told me that I could use as much timber as I wanted, on the north side of the house, and that I could clear as much land as I wanted to." A witness for plaintiff testified that Kennamer, while living on the land, "told him that Shattock got him to stay and take care of the place." At the request of the plaintiff, the court gave the following charges to the jury: (1.) "Authority to take timber from land which the defendant (?) had authority to clear, does not au [Ladd v. Shattock.] thorize the tenant to make merchandise of the timber which he was not engaged in clearing, and which he did not clear." (2.) "Authority of a landlord to a tenant in possession, the lands being farm lands, and the tenant in possession for the purpose of using the land and taking care of it, a mere authority by the landlord to the tenant would not authorize the tenant to sell the timber, or make merchandise of it; and any such act would be in excess of his authority, and would afford no protection to the purchaser." (3.) "If the defendant, knowingly and intentionally, went on the plaintiff's land, and cut and carried away timber, and he relies on the permission of the tenant in possession; then he must show, to the reasonable satisfaction of the jury, that the tenant had authority from the landlord to give such permission. When one deals with an agent, he is bound to know the extent of the agent's authority." The defendant excepted to each of these charges, and he here assigns them as error. HUNT & CLOPTON, for appellant. J. E. BROWN, contra. SOMERVILLE, J.-The authority conferred on the tenant by the landlord, to clear land for cultivation, clearly conferred on him no authority to make merchandise of the timber on such parts of the premises as he did not clear. It is equally manifest, also, that the authority "to use the land and take care of it" did not confer the power to make merchandise of the growing timber on the premises. The first and second charges given by the court were free from error in asserting these propositions. So, the third charge correctly postulated, that one who deals with an agent is bound to know the extent of his authority; and, therefore, if the defendant knowingly and intentionally cut growing timber on the plaintiff's premises, under a claim of authority from the tenant in possession, he must show to the reasonable satisfaction of the jury the authority of the tenant from the landlord to give such permission. The rulings of the court were all free from error, and the judgment must be affirmed. Bill in Equity to enforce Vendor's Lien on Land. 1. Stipulation in note for payment, on default, of "all costs for collecting, not less than ten per-cent.”—A stipulation in a promissory note, by which the maker agrees to pay "all costs for collecting, not less than ten per-cent., on failure to pay at maturity," includes a reasonable attorney's fee, and is not usurious on its face. APPEAL from the Chancery Court of Jefferson. Heard before the Hon. THOMAS COBBS. The bill in this case was filed on the 18th May, 1889, by J. J. Flowers, against H. C. Williams and R. C. Nuckols; and sought to enforce a vendor's lien on land, for a balance of the purchase-money unpaid, as evidenced by the defendants' promissory note under seal for $2,500, which was payable to W. A. Handley, and assigned by him to the complainant. The note contained a waiver of exemptions, and a further stipulation that the makers "shall pay all costs for collecting the above, not less than ten per-cent., on failure to pay at maturity"; and the bill sought to recover the amount of the note, with interest, and solicitor's fees for services rendered in the suit, asking a reference and account as to these matters. There was a demurrer to the bill, which was overruled; and an exception by the defendants to the register's report, under the order of reference, allowing a solicitor's fee; and these matters are here assigned as error, with the final decree in favor of the complainant. MOUNTJOY & TOMLINSON, for appellants, cited Harmon v. Lehman, Durr & Co., 85 Ala. 392; Stark v. Perry, 6 Lea, 411; 55 Amer. Dec. 395, note; 5 Johns. Ch. 122; 9 Amer. Dec. 283. A. T. LONDON, contra, cited Wood v. Winship, 83 Ala. 424; Dozier v. Mitchell, 65 Ala. 511; McGehee v. Lehman, Durr & Co., 65 Ala. 316. CLOPTON, J.-A demurrer was interposed to so much of the bill as seeks to enforce the collection of solicitor's fees under the following stipulation, contained in the note upon which the bill is founded: "It is further agreed, that the [Williams v. Flowers.] uudersigned [makers] shall pay all costs for collecting the above, not less than ten per-cent., on failure to pay at maturity." The special grounds of demurrer are, that the term, "costs for collecting" does not include solicitor's fees for bringing the suit, and if it does, that the contract is usurious. In practice, costs and fees are different in their nature; costs being an allowance to a party for expenses incurred in prosecuting or defending a suit; and fees being compensation to an officer for services rendered in the progress of a cause.— Tillman v. Wood, 58 Ala. 578. In common parlance, the compensation paid an attorney is denominated a fee, in contradistinction to the costs incident to the judgment; but, in its legal sense, the term costs denotes, not only the expenses incurred by reason of being a party to legal proceedings, but also the charges which an attorney is entitled to recover from his client, as remuneration for his professional services.-Rap. & Law. Law Dic. It is manifest that the parties meant that the term "costs for collecting," as used in the note, should be understoood in its broadest signification; otherwise, the stipulation would have no effect, for, without it, defendants would be liable to the costs incident to the decree. We, therefore, construe the term as having been intended to include the compensation, which the payee of the note might have to pay an attorney for bringing a suit to enforce its collection. It is well settled by our decisions, that an agreement to pay the reasonable attorney's fees, which the payee of a note would have to pay if forced to collect by suit, in addition to the legal interest, does not render the contract usurious. Defendants contend, that the terms of the agreement to pay all costs for collecting, not less than ten per-cent., without reference to the reasonableness of the charges, makes the contract usurious. In Munter v. Linn, 61 Ala. 494, the agreement was to pay, if it became necsssary to institute legal proceedings to recover the amount of the notes, the fee of the attorney employed, "such fee to be ten per-cent. of the amount sued for and recovered,"-an unconditional agreement to pay ten per-cent. It was held, that this stipulation does not constitute the contract usurious, but that the creditor could recover only a reasonable fee, though he stipulated for a larger sum or per-cent. In Wood v. Winship, 83 Ala. 424, the note obligated the maker to pay principal, interest, and ten percent. attorney's fees. It was ruled, that the note was sufficient to support a judgment by default for the entire amount due, including attorney's fees, without the intervention of a jury. These decisions show, that an agreement to pay ten per-cent. of the amount recovered, in addition to the legal interest, is [Carter Brothers & Co. v. Ellis, Thomas & Hill.] not itself usurious. The amount stipulated must be reasonable, or at least not obviously excessive; for no form which may be given to the contract, no device, can evade the statute against usury, if the intent appears, or is shown, to secure a profit in addition to the legal interest and the reimbursement of the creditor of the expenses which he may incur in collecting the note. The chancellor referred to the register the ascertainment of what was a reasonable attorney's fee, and he reported that ten per-cent. was reasonable. The proof fully sustains his report. There is not only no evidence tending to show a purpose to take usury, but the proof overcomes the defense. Affirmed. Carter Brothers & Co. v. Ellis, Thomas & Hill. Statutory Trial of Right of Property in Stock of Goods. 1. Levy of attachment by special constable.-Under statutory provisions relating to the appointment of special constables and the levy of attachments by constables (Code, §§ 840, 2956), a special constable has no authority to levy an attachment which is returnable to the Circuit Court. (Explaining and qualifying Brinsfield v. Austin, 39 Ala. 227.) APPEAL from the Circuit Court of Jefferson. The appellants in this case, suing as partners, commenced an action against A. T. Palmer, by attachment sued out before a justice of the peace, on the 27th February, 1888. By indorsement on the writ of attachment, the justice appointed and deputized O. B. Williamson as special constable to levy it; and it was levied by him, on the same day, on a stock of goods then in the possession of said Palmer. The debt claimed by the plaintiffs was $163, and the attachment was made returnable to the next term of the Circuit Court. On the 29th February, Palmer sold and transferred the goods to Ellis, Thomas & Hill, "in consideration of their releasing their debt against him for $500, to the extent of $241.15," the estimated value of the goods; and it was admitted that the sum so allowed as a credit, $241.15, "was a fair and reasonable price for the goods." The constable "was induced by said Ellis, |