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dealings between lawyer and client. It fixes the price of skill and labor. “It has no more just right to do this, than it has to fix the price of property. It may prescribe the salary of the clerg oan, or the fee of the physician, with as much reason as the compensation of the attorney. If it be said; that the attorney is an officer, admitted by the courts, and therefore, in a position different from the others, we answer, that he is not a public officer, chosen to perform public duties. He is admitted to practice in the courts, for private purposes, and on behalf of private persons. He is, in every respect, a private agent, and the only rightful supervision that the state may have him, more than it has over every citizen, is, to see that he does not abnse his license. Freedom of industry, is one of the strongest demands of the time. This includes, not only the right of the citizen to engage, at will, in any honest calling, but to receive such reward as he can agree for it.
If the right to prescribe the compensation were conceded, it should never be made to depend, upon the number or length of the proceedings. This it did formerly, in all cases, and although of late years there has been a tendency to adopt sreeific charges, there are still many cases, where the fees are graduated by the length and number of the papers. The system is wrong, for two reasons; one, that it encourages the multiplication of the processes, and the other, that it is not proportioned to the real labor performed.
So long as the compensation is adjusted as at present, according to a minute table of fees, no matter how nicely the table may be prepared, there will yet remain opportunities for unnecessary papers, and unnecessary motions. No device which the wit of man ever conceived, can shut the door upon such opportunities. And although the number of those who abuse them is not great, yet it cannot be denied, that there are unworthy persons who do so. To get rid of such
To get rid of such persons, is the wish of the profession, no less than of the public; and that cannot be done, without the abolition of the system altogether,
The real labor bestowed upon a lawsuit, is proportioned, not so much to the mimber or length of proceedings in the courts, as to the difficulty of the questions of law or fact One case requires little thought; and almost takes care of itself; another requires a vast amount of study, careful preparation, and great learning. These cannot be measured by any table of fees. A just rate of compeneation depends on the service performed, the manner in which it is performed, and the situation of the parties. One performs the service well, another does it ill: they should not both have the same compensation. Then the residence of the parties is an element in the compensation. A fair compensation, in a county, where the means of subsistance are cheap, would be wholly inadequate in a county where they are dear. In some counties, a lawyer gives fifty dollars for the rent of his office, and five hundred for his personal expenses. In others, his rent and his personal expenses are quadrupled. There is no justice in providing that he shall receive the same compensation in both places.
The only just rule on the subject, in respect to the lawyer, is the same, as in respect to every other professional person; that is, to enforce the contracts made by him. Let him make his engagement with his client, as they can agree between themselves, or if there be no express agreement, let the rate of compensation be determined by the usage in such cases. No other rule is consonant either with justice, or the prevailing spirit of this age.
The losing party, ought however, as a general rule, to pay the expense of the litigation. He has caused a loss to his adversary unjustly, and should indemnify him for it. The debtor who refuses to pay, ought to make the creditor whole.
To satisfy these different principles, it is necessary, while the relations between the client and the lawyer are left free so that they may make whatever contract they please, that there shall be provided some mode of indemnifying the successful party for his expenses in the suit. Then how shall the amount of indemnity be regulated? It cannot be adjusted with precision, from the nature of the case, but we can get an approximation to it. There are two modes; one by letting the court or the jury fix it, in each particular case, according to its circumstances; the other by giving certain allowances, graduated in part by the necessary labor performed, and in part by the amount in controversy. The latter strikes us as preferable, because it leaves nothing to arbitrary discretion.
We shall thus provide an indemnity approaching, in a degree, the amouut which the client will have to pay to his attorney and counsel. Their compensation will depend generally upon the difficulty of the case, and the amount at risk. A commission upon the amount will cover the last, and the specific charges will, in a considerable degree, cover the first. We have not designated the sums to be inserted in the act, preferring that it should be done by the legislature. They will readily perceive, that the amount concerns the client only, and not the lawyer, for the compensation of the latter will be entirely independent of it.
These provisions, we believe, will put the law of costs on its true foundation, leaving the lawyer and the client to agree upon the compensation, between theinselves, according to their views of the necessity and value of the service, and giving to the prevailing and the innocent party, an indemnity as nearly exact as it can be made, depending, not on the number of the motions, or the length of the papers, but on the risk and the labor. The reward of the lawyer will then depend, as it ought, on the responsibility he assumes, the skill he can employ, and the time he gives to his client.
It is far from our intention to say, that the indemnity thus provided, will prove, in all cases, adequate. It will sometimes be less than the amount paid by the client, sometimes it may be more. It will certainly be an approximation to it, much greater than our present system of costs, while it does not violate the first principles of political economy, and, will put away forever from the profession, the temptation and the scandal of the present system.
$ 258. All statutes, establishing or regulating the costs or fees of attorneys or counsel in civil actions, and all existing rules and provisions of law, restricting or controlling the right of a party to agree with an attorney or counsel, for his compensation, are repealed; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity, for his expenses in the action; which allowances are, in this act termed costs.
$ 259. Costs shall be allowed of course to the plaintiff upon a recovery, in the following cases :
1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial.
2. In an action to recover the possession of personal property.
3. In the actions, of which according to section 47, a court of a justice of the peace has no jurisdiction.
4. In an action for the recovery of money, where the plaintiff shall recover fifty dollars or more.
§ 260. Costs shall be allowed of course to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein.
§ 261. In other actions, costs may be allowed or not in the discretion of the court.
§ 262. When allowed, the costs shall be as follows:
1. To the plaintiff,
For all the proceedings before answer, including judgment upon confession, or failure to answer, dollars.
For all the subsequent proceedings, to the first day of the court, at which the cause is placed on the calendar for trial, or to the commencement of a trial by referees,
dollars. 2. To the defendant, for all the proceedings on his part, to the first day of the court, at which the cause is placed on the calendar for trial, or to the commencement of a trial by referees,
dollars. 3. For the trial of the issues of law, To the plaintiff,
dollars. To the defendant,
dollars. 4. For the trial of the issues of fact, To the plaintiff,
dollars. To the defendant,
dollars. 5. To either party on appeal, excepting to the court of appeals. Before argument,
dollars. After argument,
dollars. 6. To either party, on appeal to the court of appeals. Before argument,
dollars. After argument,
dollars. 7. To either party for every circuit or term, at which the cause is necessarily on the calendar, and not reached [P. & P.]