Howard v. Rome & Turin Plank Road Co. , 4 How. Pr. 416 ( 1850 )

Gridley, Justice.

'—When the Legislature abolished “ all statutes establishing or regulating” the costs or fees of attorneys, solicitors and counsel, in civil actions, and prescribed the same rate of compensation for a party, whose cause would not occupy an hour in the preparation and trial of it, as for one who would be obliged to spend days in preparing ; where witnesses would be summoned from distant parts, and where counsel would be employed many days in its trial; they foresaw that cases might occur, in which justice would demand an additional allowance of costs. The accordingly enacted that the “ court might, in difficult or extraordinary cases, make an allowance of not exceeding ten per cent, on the recovery or claim.

In this case it appears that the action was brought to recover a claim for building the defendants’ road; that the trial before a referee occupied from four to five days, and that a question arose, whether a large portion of the excavation was what is called hard-pan; and if so, what amount of it came under this denomination. The plaintiff was obliged to employ engineers of skill to go on to the track of the road and measure the number of square yards of this material, which had been removed in leveling a long and precipitous hill.

This is a clear case for the allowance. The fact that the trial lasted four or five days, is enough to render it “ extraordinary,” within the meaning of the statute. It was of unusual length, and the expense of the plaintiff would be proportionably increased. Again, the plaintiff paid over thirty dollars to engineers for their services in measuring the amount of the material removed called hard-pan, and for attending as witnesses on the trial. It appears that it was disputed that the material was liard-pan; and the quantity removed was also a litigated question. This also is a fact that entitles the plaintiff to an extra allowance. The fixed rates were intended for ordinary causes, occupying only the usual length of time, and not characterized by the necessity of procuring scientific witnesses, to make preparation for the trial, by services like those proved on this occasion. ■ - ■