Powers v. Wolcott , 12 How. Pr. 565 ( 1856 )

E. Darwin Smith, Justice.

The application for extra allowance is upon the ground that the suits are difficult and extraordinary.

Such an allowance cannot be made in the suit in equity, for that was not commenced “for the recovery of money, or real or personal propertyand no provision for extra costs is made for such a case.

The first suit, separately considered, is an ordinary action on a bill of exchange for $3,000. It was put at issue, and twice put on the calendar, and then referred to a sole referee and tried. The defence of usury is not of itself a difficult one. The law of usury is clear, well settled, and well understood.

The case was one of fact, and necessarily within a narrow compass: five witnesses only were sworn on the trial. Extra costs cannot be allowed, on the ground that the suit was a difficult one. The inquiry then is, was it an extraordinary one. This term must apply to the general character of the cause— the nature and extent of the litigation involved in it—the period of its continuance, the trouble of conducting it in respect to witnesses, counsel and parties, their situation and number, travelling and other expenses, the time consumed in the trial, and the extent of the litigation afterwards. All these considerations enter into the question, whether the suit was an extraordinary one. Here the plaintiff lived in Rochester, the cause was tried here, the witnesses all lived here, and the counsel for plaintiff resided here. The amount of the taxable costs, also, are to be considered. This cause was tried with another at the same time, and plaintiff’s attorney gets two full bills of costs—two term fees, and two fees for trial before referee of $15 and $12.

If this suit ends here, I can see no ground for an extra allowance ; hut if it should be litigated further, it might be a proper case for such allowance when the litigation is at an end. Unless the cause is to stop at this trial, it strikes me that these applications should not be made till all the litigation is ended.

These applications for an extra allowance are among the most embarrassing questions presented to the court. Knowing full well, as the judges do in many cases, that the labor, skill, and services of their professional brethren at the bar are quite inadequately compensated, these applications present a constant temptation to them to make up the deficiency by enlarging the boundaries of judicial discretion. But this should not be done. These statutes should be construed liberally, and executed fairly, like all other statutes, according to their intent; and the discretion they confer should be exercised carefully and discreetly, that no occasion may be given for their repeal on the ground that they are abused or misapplied. These considerations, duly appreciated by the bar, will relieve the courts of much embarrassment, and secure the best interests of the' profession. ,

Motion denied.