The opinion of the Court was delivered by
Smith, J.The plaintiff in error, had by virtue of a warrant of attorney confessed a judgment to the defendants in error, of *79April term, 1823, for the sum of 14,000 dollars. In 1827 certain measures were taken to ascertain the amount due on this judgement, and a verdict and judgment were rendered on the 30th of April, 1828, in favour of the plaintiffs for 1,150 dollars. On the trial, by agreement of the parties, the controversy was reduced to a mere matter of account; in the investigation of which, however, much time was consumed, and some important principles drawn into discussion. It was admitted by the plaintiffs, that the judgment had been given by the defendant for responsibilities and advances to be incurred, and made, after the entry of the same, as well as for other demands ; and an account was exhibited by them, of the amount due, under the judgment and secured by the same. In this account, one item of charge was, for professional services, rendered by one of the plaintiffs, (Mr. Brackenridge,) as counsel and attorney of the defendant, and another was for lending his credit to the defendant to obtain loans; on which items, as well as on other matters, the Court charged in favour of the plaintiffs. The, defendant, having excepted to this charge, has assigned the following errors..
1. It being admitted by the plaintiffs, that this judgment was given by the defendant for responsibilities and advances to be incurred, and made after the entry of the judgment, the Court erred in charging the jury that the plaintiff’s account of such advances was to be taken as prima facie correct.
2. The Coui't erred in charging the jury in substance, that any claims or accounts, which the plaintiff may have presented, in addition to those contained in his Account as filed, should be taken by the jury &s prima facie evidence of such claims or accounts; and the Court also erred in permitting to go to the jury art account of the plaintiffs, containing items which occurred since the issue directed in this case.
3. The Court erred in charging the jury in substance, that they were at liberty to allow the defendants in error a quantum, meruit for his professional services, beyond the fees allowed by act of assembly
4. The Court erred in charging the jury in substance, that a man may lend his credit to another, and though he has no money to pay, or advance, he may charge and be allowed beyond six per centum for so doing.
The Court were right in admitting the plaintiff’s account as prima facie evidence. It had been in fact, filed long before ths trial, and was on record, in consequence of directions given, when the issue was formed to this effect, that it should be received a a, prima facie evidence of the amount due on the judgment; but *80that the defendant should beat liberty to prove payments, or give in evidence such matters, which in equity and justice might amount to payment of the plaintiffs’ demand. The question therefore simply was, whether the defendant had given proof of payments, for which the plaintiffs had not credited him, or of circumstances constituting an equitable defence. So in regard to the additional items, mentioned in the second error, they must be considered as conclusive on the defendant, (in consequence of his agreement made at the trial) as well as the original account filed,, unless he can answer them by a similar defence. And this may suffice in regard to the first and second errors.
The third error assigned, has been warmly contested here, as the point involved in it, was on the trial. I allude to the charge of compensation for professional services. We have duly considered the matter, and a majority of the Court is of the opinion, that under the circumstances, the charge of the Court was correct. We must not forget the real state of the question before the Court and jury. Professional services had been rendered to the defendant at his speeial instance and request. For a series of years, and in an extensive course of litigation, causes were prepared out of Court, and were tried in Court, by one of the plaintiffs. As to these facts there was no dispute. The account being filed and received as evidence of the demand, the defendant, under the agreement, was called on to show payment, or to show that in equity and conscience, it ought not to be paid. Of actual payment, there was no pretence ; and we cannot perceive, in the only fact urged, — that the services were those of a counsellor at law,— any thing which should, in good conscience, debar the plaintiffs from a reasonable compensation. Had the defendant paid for those services, no one could contend, that he ever could recover back the amount, although no such directions were given by the Court, and no such agreement were made by the parties, as existed in this case. The answer would have been, you cannot recover, because the defendant has honestly received and may fairly retain the money. Morris v. Tarin, 1 Dall. 147. I regard this claim, under the circumstances, as standing upon as just a footing, as if there had been an express verbal promise to pay, or a promissory note given for the same services by the defendant. As the consideration of such a note, was declared in Mooney v. Lloyd, to be sufficient to support an action upon it, so, there can be no doubt, it is equally good, on the present issue, to sustain this item of the account against the objection which has been urged ; for so far from its being against equity to demand payment of the defendant, it is manifestly unjust and inequitable in him to refuse it. We say therefore that the defendant failed *81in showing, that he ought not, in conscience, to be called upon to pay; and that the Court below committed no error in that part of the charge.
As to the last error assigned: — The law certainly has fixed the compensation to be paid for the loan of money; but I take it, to be equally well settled that by the custom of merchants, for advances or credits made by one to another, a compensation may be allowable, by express contract; always depending, it is true, upon the nature of the transaction and the risk run. The charge of the Court, in our opinion, was in this particular also correct ; — for if A lends his credit to B, it is to him of as much moment as an advance of money, he obtains money by it; it. is a matter of business, fairly to be compensated, and affords as just a claim as any other consideration. The jury must always say, whether the charge be reasonable or not. We cannot discover any error in this case, and therefore affirm the judgment.