Rice v. Wright , 3 How. Pr. 405 ( 1848 )

Willard, Justice

If the term “difficult or extraordinary cases” in § 263 of the Code of Procedure embraces all cases where a defence is seriously and earnestly made, and where the services of counsel are necessary, the present case was both difficult and extraordinary. But the court is not bound, at all events, to make the allowance, though the talents and learning of counsel were required. We have a discretion to exercise; and this implies, that in cases both difficult and extraordinary, it may sometimes be unjust or inexpedient to mulct the Defendant with a per centage on the recovery. The case of a surety, is stricti juris. It is sufficiently hard that he is compelled to pay the whole debt and the usual costs. The court ought not to impose upon him any thing beyond this, unless he has misbehaved himself in making the defence, or has acted in bad faith, or has the means of indemnity in his own hands. ISTothing of the kind exists here. The surety has acted throughout with fairness, and there is no pretence that he has been indemnified.

The motion, therefore, must be denied.