Trapp v. M'Kenzie ( 1820 )

The opinion of the Court was delivered by

Richardson, J.

The Act of IT91,¹ 1 Faust, 5, 1 Brev. Dig. 339, declares, “ that the several and respective fees hereinafter mentioned, &c., shall be paid, &c., for the different services in the respective suits, &c., in lieu of all other demands, &c.” And the same Act repeals all other Acts upon the same subject, (fees.) The clause first recited, renders any litigant, who may employ an attorney, liable to him for certain fees according to the specific professional services performed, and the invariable construction placed upon the same clause, has been, that such litigant, if successful in his suit at law, or in his defence, may recover over against the opposite and unsuccessful party, the like fees by way of ^reimbursement for his expenditure sustained in such suit or defence. Now there L can be no doubt that Jas. M’Kenzie was liable to his attorney for the appearance, plea, subpoena, judgment, &c., in this case. And he is as much within the reason and expression of the Act, as any other successful litigant. The verdict proves that he had been sued improperly and illegally. Though in the right, he was mulct in costs by a groundless suit, brought against him. Like every other successful party in a suit, he should then recover over his hosts expended.

But it is asked, how are we to divide a joint plea, joint subpoena, &c. ? The answer is plain. Whether the plea be joint or several, the party is liable for each to his attorney, and he may recover over to the extent of his own liability and no more.

Again, it may be asked, if there had been several defendants acquitted, could each recover over for the same joint plea, &c., and filed by the same lawyer ? The answer is equally plain. They could by no means do so. Several defendants would, in such case, be liable to their own lawyer, only for one plea, &c., and many defendants, who had been acquitted, could recover over no more than any one defendant might, who had been solely acquitted. The motion is, therefore, discharged.

Coicock, Nott, Johnson and HugeR, JJ., concurred.

See 4 MoC. 158 ; 1 Bail. 189.

1 5 Stat. 153.