Oliver vs. McClure.

be by express stipulated contract, or be the result of the law. Counsel for the appellant insist that the legislature may alter and change the remedy ad libitum, and cite many authorities to that effect, which we have carefully examined, and with the exception of the case in 38 Cal., 438, they all seem to pertain to the remedy to ascertain a right, rather than to enforce one. Our conclusion from the authorities is, that it is competent for the legislature to alter and change remedies, process, etc., before judgment, but when the right is judicially ascertained, they cannot interfere with the process to enforce that right that materially renders the right less efficient than that in existence when the contract was made.

The provision of the Code for redemption, instead of allowing an absolute sale of the property, as was the law when Miller and Pennington made the contract, provides for a conditional sale, or in other words, it authorizes the sheriff to make a contract for the absolute sale of property after the lapse of one year's time, unless such contract be defeated by the performance of a specified condition, to wit, the return of the purchase money paid, with interest, before the expiration of the year.

If the statute for the enforcement of the right enters into and becomes a part of the contract, and so we understand the supreme court of the United States, then if the contract be for the absolute sale of property, a law like unto the provisions of the Code materially impairs the obligation of that contract, and, as to such prior contracts, is void; for the right to sell the absolute fee with immediate possession to the purchaser, is worth infinitely more, and much more likely to realize the fulfillment of the contract, to wit, the payment of the money, than the conditional sale provided for by the Code. Finding no error in the record, the judgment of the court below is affirmed.

Bostick et al. vs. Cox, Clerk.

MCCLURE, C. J., being disqualified, did not sit in this case. BENNETT and STEPHENSON, JJ., dissenting.

BOSTICK et al vs. Cox, Clerk.

DOCKET FEE: Against whom adjudged, etc.

Under section 775, Code of Civil Practice, only one docket fee is recoverable off of the same party in any one cause, whether litigated before one court or more than one, and is adjudged against the party losing costs, and such fee goes to the plaintiff or defendant as the case may be, and not to the attorney.

PETITION to tax Costs.

Clark & Williams, for petitioner.
T. D. W. Yonley, for defendants.

GREGG, J. Upon the affirmance of the judgment of the court below, Messrs. Clark & Williams, attorneys for the appellees, filed their application for a rule against the clerk of this court, compelling him to tax an attorney's docket fee against the appellant in this court.

Section 775 of the Code of Civil Practice provides that in all cases in the supreme, circuit and chancery courts, in which costs are recovered, the clerk shall tax as costs a docket fee, prescribing the amount to be taxed in the different courts, and in the different classes of cases. Also providing that but one docket fee shall be charged against the same party in the same action.

We are of opinion the latter clause of this section discloses an intention on the part of the legislature to require but one docket fee off of the same party in any one cause, whether litigated before but one court or more than one.

Bostick et al. vs. Cox, Clerk.

If a plaintiff in a court of original jurisdiction loses his case, costs there go against him, and of course the docket fee is recovered by the defendant; if he appeals and reverses the judgment and recovers costs, etc., of the original defendant, he is then allowed his docket fee in the appellate court and will recover the amount specified for that court; with such results there may be more than one docket fee taxed in the same case, because there may be judgment for certain costs against such party. Yet there is but one recovery of a docket fee against the same party.

With this construction, all parts of this section may have effect, but to hold that, under the first clause of the section a party could recover a docket fee each time he might recover other costs, would produce conflict between it and the last clause.

The counsel assume the docket fee is for the attorney. They have referred us to no law showing that they have any interest in this fee, more than they have in other moneys. recovered by their clients, and we are of opinion there is no such law, and that the attorney has no right to such fee.

In this case it is not pretended that the appellees did not collect of the appellants a docket fee in the court below, and as but one such fee can be adjudged against the same party in a suit, the rule upon the clerk is denied.

INDEX.

ADMINISTRATION.

See CLAIMS AGAINST ESTATES. PRACTICE, 4.

1. ADMINISTRATOR: His right to plead the statute of limitations.
When an administrator takes possession of the property of an estate,

19

he becomes a trustee for the widow and next of kin, and no lapse of
time can be pleaded, in bar, as between him, as such trustee, and the
cestui que trust or beneficiaries, though the statute of limitations
may be pleaded as against creditors. Jones v. Jones, Adm'x.,
2. SAME: Matter in avoidance, when limitation pleaded by, etc.
Under the code of practice, when courts can exercise equitable and le-
gal jurisdiction, fraudulent conversion and concealment by the in-
testate may be given in evidence in answer to the plea of limi-
tation, by an administrator, on a cause of action accruing in the
lifetime of the intestate. Meyer v. Quartermous, Adm'r, etc.,

45

3. SAME: Cannot represent interest of partnership creditors.
Where, under sec. 4, ch. 4, Gould's Digest, the property by order of
the probate court was vested in the minor, and subsequently the
administrator moved to rescind the order, alleging that the property
was partnership property: Held, the administrator had no right to
represent the interests of the creditors of the partnership. Bell,
Guardian v. Lawson, Administrator,
140

AGENCY.

See ATTORNEY.

1. RATIFICATION: What acts amount to.

If one purchase goods for another without authority, and the person
for whom they are purchased receive them and use or sell them on
his own account, after being informed that they were purchased for
him, this is an implied ratification of the act of the person making