Waller v. Harris , 7 Paige Ch. 479 ( 1839 )

The Chancellor.

At the time of the adoption of the present fee bill, as contained in the revised statutes, the points which were to be relied upon in argument constituted a part of the printed case, or cases, which were to be delivered to the court previous to the hearing. (See 6th and 12th Rules of April, 1827. 9 Cowen’s Rep. 288.) No separate provision for the draft or copies of points was therefore contained in the fee bill. Neither was the second item of the solicitor’s fee bill on appeals, intended to embrace the allowances to be made for the draft or the copies of points; which were otherwise provided for in that fee bill, as a part of the case. As a part of the case, the solicitor was entitled to charge for the points, twenty-five cents a folio for the draft and ten cents a folio for two copies, one to be signed by counsel and another for the printer ; and for the actual expense of printing the other necessary copies for the court and counsel, to be used on the argument. The allowance for engrossing of papers, mentioned in the second item, certainly could not' have been intended to apply to the numerous printed copies of papers which were to be furnished to the members of the court for the correction of errors at the hearing. For by a reference to the fee bill in chancery it will be seen that the allowance for engrossing is at the rate of fourteen cents a folio; and a charge for engrossment is only allowed where the paper is to be filed as a record of the court.

It is true that since the adoption of that fee bill the court, by an amendment of its rules, has separated the points from the other part of the case; the object of which amendment was to give to each party the full time, down to the commencement of the argument, to prepare his points and get them printed. Such in fact was the practice before the change in the rules took place; as the points were generally printed separately from the rest of the case. This slight modification in the rules, however, could not alter the legislative allowance for services which were substantially the same as before; nor authorize the solicitor to claim an exorbitant allowance for these printed copies, as engrossments within the meaning of the second item of the fee bill on appeals. The charges for these services must therefore be taxed at the same rate that they would have been, if the rules of the court had declared that the points should still be considered as a part of the case made and printed for the use of the court. The respondent’s solicitor must be allowed at the rate of twenty-five cents a folio for the draft of his points, and ten cents a folio for the two copies, to be signed by counsel and for the printer; and the actual expense of printing the necessary copies to be used on the argument.

No decision upon the construction of the fee bill in relation to writs of error can aid much in the settlement of questions upon that part of the fee bill which relates to the costs upon appeals. The language of the two sections of the fee bill, relative to the fees of solicitors and the fees of attornies, in the court for the correction of errors, is entirely different; neither is the amount of the allowance for similar services the same in both. The same difference also exists between the fees in the supreme court and the fees in the court of chancery. In the supreme court the allowance for copies and for engrossing is the same— twelve and a half cents the folio ; and no distinction is made between papers which are to be engrossed and filed as records, and copies of papers to be used for ordinary purposes. But in the court of chancery fee bill, the allowance for engrossing papers is double that of ordinary copies. And, as I have before said, none are to be engrossed except such as are eventually to be filed as records of the court. I have not, however, been able to find any decision of the supreme court in which it has been held that the attorney, upon writs of error to the court of dernier resort, is entitled to charge at the rate of twelve and a half cents for every folio in all the numerous printed copies of the points delivered to the members of that court at the hearing. And if such an allowance has been made by a taxing officer, upon the concession of the parties and without argument, it is not entitled to the weight of a judicial decision.

The objection in this case that the points were unnecessarily long, is not sustained by any thing in the papers before me on this application. Since the adoption of the rule requiring the authorities to be added to the points, as a part thereof, it would be difficult for any taxing officer, without seeing the points and knowing something of the questions in controversy between the parties, to say that it was impossible that points properly drawn could contain thirty-six folios, including the authorities relied on in support of them. If the party opposing the taxation wished the taxing officer to decide the question of prolixity, as he is authorized and required to do under the statute, (2 R. S. 653, § 5,) such party should have furnished him with the means of determining that question, by the production of a copy of the points, with a copy of the printed case, or in some other manner.

The costs must be re-taxed. Three cents are to be deducted from each folio in the draft of the points, so as to reduce it to twenty-five cents; two copies are to be allowed at ten cents a folio each; and the printer’s bill must be substituted in place of the allowance for the other thirty-seven copies. And the re-taxation is to be without costs to either party.