Scott v. Elmendorf , 12 Johns. 315 ( 1815 )

Per Curian.

It is not permitted to a defendant sued on an attorney’s bill, which has been served according to the statute, to contest the items on the trial, because he can procure the bill to be taxed, by application to the court at a seasonable period. (Doug. 198. 2 B. & P. 237.) The objection here went beyond the items, and attacked the principle on which the bill was taxed; the plaintiffs insisting that they are entitled, as between themselves and client, to be paid the fees allowed by law, in cases where the recovery is above 250 dollars, in this court ; and the bill is made out upon that principle. In the present case, there was no agreement, on the part of the defendant, to pay the plaintiffs any costs at all, other than an implied assumpsit resulting from their retainer. When the law has marked out the costs which are recoverable; in a case like thé present, and has forbidden the attorneys to exact ;or demand any more or other than such as are Specified, it would be extraordinary that the law should raise a promise to pay more than can be legally exacted. It is said there was ’a necessity to bring the suit on the note in this court, as the makers of the note lived in different counties. This might have been a motive for the-plaintiffs’ declining to commence the action, but it is no argu-" ment why they should have costs not adapted to' the case. There is room for doubt, whether an agreement, in express terms, to pay higher costs than those allowed by law, would avail; but when, as in this case, nothing is said, there cannot foe a doubt that no other costs are recoverable, as between attorney and client, than such as the fee bill directs, when the recovery is under 250 dollars. And in this case, we think the defendant was not concluded from making the objection at the trial. •

It follows, that there must be a new trial, unless the plaintiffs elect to make out their bill on the principles above stated; in which case, if the amount be under 50 dollars, the defendant will be entitled to the costs of this suit; on paying the balance; if any, a new trial will be unnecessary.

Motion granted.