Supervisors of Onondaga v. Briggs

By the Court, Jewett, J. At common law neither party recovered costs against the other. The right to costs is created by statute and wholly depends upon it, and the right does not become fixed until the termination of the suit. The recovery of costs must be controlled, as to items and the rate of compensation, by the statutes in force at the time the right to costs accrues, or at the time of taxation. It is competent for the legislature, at any time during the progress of a suit, to create an allowance for services not before provided for, and to increase or diminish, or wholly abolish such allowances as existed at the time the suit was commenced. At the time this suit was brought the fee bill contained in the revised statutes was in force, and it continued to be the rule so far as concerned this suit, until the 1st day of April, 1844. (2 R. S. 632, §§ 17, 18; Stat. 1840, p. 336, § 38; Stat. 1844, p. 92, § 8.) The'suit having been commenced prior to the time when the act of 1840 took effect, the costs were by the 38th section expressly exempted from its provisions; but when that section came to be repealed by the act of 1844, all the provisions of the revised statutes regulating the compensation of counsellors and attorneys in this court became extinct. (Stat. 1840, § 40.) After such repeal there was no statute remaining in force allowing a party to recover compensation for the services of counsellors or attorneys, except the act of 1840 before referred to. But before this suit was tarminated, the fees prescribed by that act were 175 changed in some 'respects, by an act passed on the 14th of May, 1844. (Stat. p. 402.) These two statutes prescribed the rate at which all the services of attorney and counsel rendered in the course of the suit in this court ought to have been taxed, and there was no other act in force when the suit was terminated or when the costs were taxed bearing upon the subject. (See The People v. The Herkimer C. P., 4 Wend. 210.) So far as fees have accrued for services in the court of errors, the fee bill in the revised statutes continues in force. (Stat. 1840, p. 336, § 39) The bill must be re-taxed upon the principles above stated. Ordered accordingly.