Martin' Vs. The State. trouble of drawing the indictment, &c. He never June 1805. doubted but the attorney is entitled to his fee in such cases; and also in cases where, after indictments. the party dies or runs off. The state has always allowed to the attorney-general a fee of 400lbs. of tobacco in all such cases in the general court--and yet by the law, if the strict letter is to be pursued, he is not entitled to any fee. The object of the attorney-general is to have a fair investigation of the subject. He is not more interested than other gentlemen of the bar. The 7th section provides for fees in civil casesthat there shall be paid to any attorney, or other person, practising the law in any of the county courts of this province, for bringing, prosecuting or defending, any action, of what nature or quality soever, to final judgment, &c. the sum of 100lbs. of tobacco, unless the principal debt and damages, or balance of any debt and damages sued for and recovered, do exceed the sum of 2000lbs. of tobacco, or £10 sterling, that then the said attorney shall have 200lbs. of tobacco, and no more; and to any attorney, or other person practising the law in the provincial court, high court of chancery, commissary's court, court of vice admiralty, or for prosecuting or defending any appeals, writs of error, or any other matter or thing whatsoever, before his excellency the governor and council, the several sums hereafter expressed and set down; that is to say, for prosecuting or defending any cause, plaint, or action of what nature soever, in the provincial, (now general) court, to final judgment, &c. the sum of 400lbs. of tobacco, and no more; for any fee in the high court of chancery, and court of vice admiralty, 600lbs, tobacco, &c. for any fee upon any writ of error, or appeal, which shall be before his excellency the governor and council, (now court of appeals.) 600lbs. of tobacco, and no more; and to his majesty's attorney-general for any action in the provincial (now general) court, at the suit of his majesty, indictment, presentment or information, the sum of 400lbs. of tobacco, and no more." It is a question whether this section relates to actions of trover, Martin The State. JUNE 1805. detinue, assault and battery, slander, replevin, tres. pass vi et armis, trespass quare clausum fregit, ejectment, dower and partition; for in some of the said ac tions the specific property may be recovered, and only one penny damages given-in some of the cases no damages at all; and although property may be recovered to a considerable value, yet if the damages do not exceed £10, the attorney, under the act, is only entitled to 100lbs. tobacco in suits in the county court. Suppose a suit is brought where there is £1000 due, but the debt is paid in full, or a sum less than £10 is due when the case is ended-what fee is the attorney entitled to? It has always been the practice in this state for attorneys to send their fees out immediately, not waiting until the suit is endedand this practice has been sanctioned by the courts; yet if this law is to have a rigid construction, the practice is incorrect. To show the absurdity of the act-suppose the defendant's attorney, by his great abilities, gets his client clear upon payment of a sum less than £10, for his trouble he gets a fee of 100lbs. tobacco; but if he combines with the attorney of the plaintiff, and suffers a judgment for above £10, then he gets a fee of 200lbs. of tobacco. The true meaning of the law is, that the attorney is entitled only to 100lbs. of tobacco, where the debt due, or damages liquidated, does not exceed £10 sterling, or 2000lbs. tobacco. There can be no balance of damages in assault and battery, slander, &c. for wrongs and injuries done; and in all other cases than those of debt, or damages liquidated, less than £10 sterling, the attorney is entitled to a fee of 200lbs. of tobacco. The second section of the act of 1763, ch. 21, and the first section of the act of 1791, ch. 68, show that damages means liquidated damages in the nature of a debt; for it never was intended that justices of the peace should try cases of assaults and batteries &c. The obvious meaning of the act of 1715 is, that the attorney is only to claim a fee of 100lbs. of tobacco, where the party by his suit only claims a debt or sum of money less than 10 sterling, or 2000lbs. of tobacco. The construction, if you tie it down to the letter of the law, says the sum recovered. But if that is the case, it often occurs that neither the plaintiff nor defendant's attorney are entitled to a cent; for it often happens that cases are entered agreed, on payment of costs. He holds it to be correct, that attorneys in the county courts are entitled to a fee of 200lbs. of tobacco in all cases, unless it is evident by the plaintiff's demand he only claims a sum not exceeding £10 sterling, or 2000lbs. of tobacco. By the act of 1763, ch. 23, s. 12, "an attorney being concerned for either plaintiff or defendant in any case of equity to be heard before the county courts, shall have and receive 100lbs. of tobacco where the debt doth not exceed £10 sterling, or 2500lbs, of tobacco; and where the debt doth exceed 10 sterling, or 2500lbs. of tobacco, the attorney shall receive 200lbs. of tobacco." Where the party files his bill in the county court acting as a court of equity, he states in his bill the sum due to him, and if it does not exceed 10 sterling, or 2500lbs. of tobacco, the attorney is to receive only 100lbs. of tobacco for his fee-This act going upon the same principles as the act of 1715, in common law cases. By the act of 1715 there is no provision for any fee but where suits are brought for debt, or liquidated damages-Leaving the fee as it stood before that act in all other actions. The act of 1715 goes on, as we have seen in the 7th section, to give "to any attorney, or other person practising the law in the provincial court," 400lbs. of tobacco for his fee, in any cause, plaint or action, of what nature soever." If the attorney-general had not been named in the section, he would be considered under the general words of "other person practising the law," &c. to be entitled to 400lbs. of tobacco for his fee, in all state suits prosecuted or defended in the general court. The words referring to the attorney-general-and to his majesty's attorney general, for any action in the provincial court, at the suit of his majesty, indictment, presentment or information, the sum of 400lbs. of tobacco," are not restrictive, though indictment, presentment, &c. are JUNE 1805 Martin VS The State JUNE 1805. used; for the section is clear enough without these words, for it is said, "other person practising the law," &c. is entitled to the fee of 400lbs. of tobacco, in any cause, plaint or action, of what nature soe. ver." The practice ever has been for the attorneygeneral to receive the fee of 600lbs. of tobacco for prosecuting or defending cases in the court of appeals and-court of chancery, where the state was a party, and yet there is no provision in the law that he shall have a fee in those courts, unless the general words of other person practising the law," &c. authorise him to receive the fee. It was not the policy of the law to restrict the attorney-general, for he could receive no other fee than the tobacco pittance The law has not been drawn with very great precision or accuracy. The very first section shows that it has not -For it is said no process for any criminal maiter, or other misdemeanor, shall issue," &c. He knows of no misdemeanor for which a party can be indicted, which is not a criminal matter. The general princi ple which the act of 1715 had in view, was, that for prosecutions in the county courts, where the prosecu tor had not the trouble of drawing an indictment, he should receive no larger fee than 100lbs. of tobacco. So in civil cases, where the suits were for petty sums, it was supposed, as the debt or damages were liquidated, the attorney would have but little trouble, a less fee was given than in other cases. But in all other cases the fee was to remain the same as it stood before the act of 1715. Antecedent to this law the fee was 200lbs. of tobacco in all cases in the county courts, and the object of this law was to restrict the fee in the particular cases therein mentioned. 2. He will now take up the first case. Every attorney, practising the law in the general court, is entitled, in every suit he prosecutes or defends, to a fee of 400lbs. of tobacco. And an attachment which issues out of that court to bring in a person for a breach of the law, is as much a suit as any case for debt upon a bond or any other case. The act of 1715, ch. 57, s. 3, directs that every person returned as a juror, and shall not appear, but make default, shall 1. What is meant by an action and its definition. Actio nihil aliud est quam jus prosequendi in judicio quod alicui debetur. 2 Inst. 40. Bracton, Lib. 3. c. 1, fol. 17. Action is the form of a suit given by law for recovery of that which is one's due. Actions are either civil or criminal. Jacob's Law Dict. tit. Action. The instruments by which this remedy is obtained, are a variety of suits or actions which are defined by the mirror, the lawful demand of one's right. 3 Blk. Com. 116. An application to a court of justice for redress, is an action. 1 Bac. Ab. 26. Wherever any thing is to be recovered, or the party is to be restored to any thing, it is an action. 2 Bac. Ab. 26. A writ of error, where any thing is to be recovered, is an action, and may be released by that name. Co. Litt. 288, b. 209. Actions, are divided into civil and criminal. Criminal are either to have judgment of death, as appeals JUNE 1805 Martin VS. The Statc. |