Board of Commissioners v. Spofford ( 1874 )

Westbrook, J.

The additional affidavit submitted shows that, by an agreement between counsel made prior to the trial of the above action, the amount which the plaintiff claimed to recover therein was $4,600.

Section 349 of the Code provides for an allowance “not exceeding five per cent upon the amount of the recovery or' claim, or subject-matter involved.” The compensation is for the work and labor of the trial, and it seems to me that the allowance should be based upon the amount which was shown by that contest to be really in dispute. The sum for which the complaint demands judgment really is the claim of the plaintiff; and especially can it not be so regarded when counsel, by actual agreement, fix it less.. Parties frequently adjust the amount of a recovery for which judgment may be had, provided there is any recovery at all. Take for example an action of trespass, qua/re clausum fregit, in which the complaint claims $1,000 as damages. On the trial counsel stipulate that the amount of actual injury is $250; which sum the plaintiff shall recover, provided the. locus in quo is found to belong to him. Suppose, in such a case, the defendant has a verdict, upon what sum would the allowance be based, and what would be considered the claim of the plaintiff ? Or in-an action for the conversion of personal property, when the value of the property taken is admitted upon the trial, the litigation being as to the title and the defendant succeeds, what, in such a case, is the claim ?

The supposed cases illustrate this. The claim was actually $4,600, and this was the amount concerning which a trial was had and the labor performed.

It follows that the order should give to the defendant an allowance of five per cent upon the sum of $4,600. Considering the extent of the litigation, the amount will not be unreasonable. The character in which plaintiffs sue, and the objects of an action, are neither of them elements which the court can regard in fixing the allowance. No discretion, based upon any such consideration, has, by the Code, been committed to the judiciary.