By the act of April 9th, 1813, (2 R. L. 16,) the fees of the clerks of the Supreme Court, in civil causes, are regulated. When the services specified are performed, they are entitled to compensation. But it by no means follows, that when a public officer is required by law to institute and conduct prosecutions, in behalf of the people, and is necessarily obliged to resort to the clerk to seal the process, and perform other services incident to such prosecutions, that the claim for compensation is against the officer. If this were the case, it would seem to subvert the known and established rule, that where a public agent or officer acts ostensibly within the line of his official duty, his contracts are public, not personal. ( Walker v. Swartwout, 12 John. 444. Olney v. Wickes, 18 id. 122.)
The fees of the clerk generally accrue from services rendered for attorneys in the causes of individual suitors. In such cases the attorneys are liable. But in the case before us, the defendant was district attorney. By the 7th section of the act of April 21, 1818, (4 Laws N. Y. 307 (c,) it is declared that fines and recognizances, which may be imposed and forfeited in any of the counties within this state, shall be collected by the district attorneys thereof, and paid to the county treasurer, for the use of the county. This act imposed a duty. So far as the personal service of the district attorney extended, he was bound to perform it; but .it never could have been intended, nor does the act require a construction, that he was also bound to make ad *264vanees of his own money to the different officers of Court and witnesses, so as to enable him to bring such causes to a termination. If such had been the intent, it is reasonable to suppose, that some provision would have been made for the ultimate remuneration of the officer, at least, in cases where there was a failure to recover. But, in this respect, the law is silent. The 6th section declares, that the compensation which is allowed by law to district attorneys, shall be paid by the respective counties; and that their ac counts be taxed by any officer authorized to tax costs in the Supreme Court. Here is the only provision for payment ; and that has reference to the fees allowed by the act of 1813, for conducting public prosecutions; and does not include fees for services in civil suits. When, therefore the act speaks of compensation allowed by law, it necessaly means such fees as the act of 1813 specifies; for there is no other act on the subject. The 9th section of the statute of April 1st, 1818, does not reach the case. If the defendant had made application for compensation to the supervisors of the county, they might correctly answer, the county is entitled to the fines when collected ; but with the costs accrued we have no concern ; for the act has not required us to make any allowance. Whether the clerk would have been justifiable, in refusing, till paid, to file the papers and affix the seal to process, in the causes commenced by the district attorney, it is not necessary to decide. It is enough that, in our opinion, if he rendered his services, the officer is not bound for payment.
The act has not provided in what manner the fees shall be paid. The claim for compensation must, as in other cases not specifically provided for, be addressed to the justice of the legislature.
If the preceding view be correct, with respect to the clerk, prior to the passing of the act of April 6th, 1810,1 think that subsequent to that period, the argument against the defendant’s liability becomes more conclusive; for, by that act, a salary is allowed to the clerks, and the amount of fees are directed to be paid to the treasurer of the state.
If the plaintiffs are entitled to recover, an officer who is directed to perform services for the state, and in the exer *265cise of that duty, is obliged to resort to the office of the state for the purpose of filing his papers and sealing process, is . placed on the same footing as an attorney for private suitors; and that too, although it turns out that nothing can be recovered against the persons prosecuted. Such a principle would indeed place the state on advantageous ground, and distinguish the case from the law applicable to principal and agent; but it cannot be supposed. When an agent acts within the scope of his authority, and renders services for his principal, he is entitled to be paid both for his disbursements and services. Suppose the principal happened to be the owner of the horse rode by the agent, in traveling to perform his agency, or the owner and occupant of the ferry over which he crossed, would it be contended that he should pay his principal for these aids ? For what purpose could the law sanction such a claim, when it is evident that if the agent paid the principal for such charges, he would be entitled to recover them back, as expenses necessarily incurred ? This would be the case between individuals. The present case is distinguished in this, that the state cannot be prosecuted ; yet the principle is the same. If the defendant had succeeded and recovered the costs, then he would have become liable for these fees on the ground of money had and received; but not otherwise. One of the pleas avers that no costs or moneys have been recovered or collected, which the demurrer admits. The objection that due diligence ought to have been averred cannot be sustained; for, until the contrary appears, we are to presume that a public officer has done his duty.
I am of opinion that the defendant is entitled to judgment.
Sutherland, J. concurred.
Savage, Oh. J.having been Comptroller, in whose office the fees in question stood charged to the defendant, and having also directed this suit to be brought, gave, no opinion.
Judgment for the defendant.