Explanation to the Fee Bill.

As an explanation of the preceding, fee bill, the compiler has thought it would be acceptable to present the report made by his Honor the Chancellor to the Legislature, accompanying the bill prepared by him; which may serve as a commentary upon it, and explain doubts which may arise respecting the items.

Albany, Feb. 25th, 1818.

The Chancellor, in compliance with the resolution of the honorable the House of Assembly, of the 20th instant, requesting him "to prepare and transmit to the house, a new tariff or bill of fees, proper to be allowed in the court of chancery, and without regard to any laws or usages of that court now in force," has prepared, and has now the honor to submit, the bill of fees contained in the annexed schedules. He has accompanied each charge with explanatory remarks, showing the reason of the allowance, and how far, or why he has followed or varied from the existing law.

He has left untouched, the fees of the several officers of the court, such as the register, clerks, examiners and masters; because, upon inquiry and examination, he satisfied himself, that the present bill of fees in respect to these officers is well defined, and is no more than a just and adequate compensation for their services. If the charges might be properly varied in a few instances, it would only be in very immaterial points, not worth the expense and trouble of a revision. No complaint or abuse as to the charges of these officers has ever come to his knowledge since he presided in the court. He presumes, that the fees and charges of counsellors and solicitors, and especially those of the latter, gave occasion to the present inquiry, and he has accordingly examined that branch of the fee bill with the utmost care. It is impossible to state with any precision, the difference between the bill he has drawn, and the existing bill of fees. It will, no doubt, in its general operation, essentially reduce the gross amount of the taxable costs, and yet the real and valuable services of the solicitor will be better rewarded.

Chancery suits will frequently be very expensive, from the importance and amount of the matter in controversy, and the long and intricate inquiries that they inevitably lead to. This cannot be avoided, and it arises from the appropriate subjects of equity juris

diction, such as mistakes, frauds, trusts, accounts, partnerships, and the specific performance of contracts. In cases of serious litigation, no fee bill ever did or ever can remunerate the solicitor and counsel for one half of their services. A great part of that burden always falls upon their own clients. The real mischief complained of arises in plain and ordinary cases, and from a series of petty charges for nominal services, or for services of no other use than to create expense. Such charges, when industriously multiplied, and sagaciously interwoven in a long bill, increase the costs insensibly but surprisingly. One great object with the Chancellor has been to redress that grievance. He wishes to prevent imposition and extortion under the color of law, by removing the inducement to multiply needless pages, needless copies, and needless abridgments of papers, and also by removing the expense of fictitious motions, fictitious briefs, and fictitious attendances. Such charges have often excited as much disgust in his mind, as they have dissatisfaction and alarm in that of the suitor. On the other hand, the Chancellor has presumed, that he should equally meet the wishes of the honorable and enlightened house which called for this request, by allowing a reasonable reward for their services to the practisers of a liberal and useful profession. It is for the benefit of suitors, and necessary for the oppressed and the helpless of all classes, that skilful, attentive and upright persons should be encouraged in the due and faithful discharge of their trust as solicitors, by a suitable recompense. The Chancellor is not insensible to the truth, that we live under a government of laws, which are the guardians of our civil rights, and which require wise and good men to study and expound them, and that without the aid and light of the profession, our courts would utterly despair of success in their efforts to preserve the orderly, cultivated and intelligent administration of justice.

It has accordingly been his aim to render to the solicitor his reasonable fees, and at the same time, to prevent all excess and to remove every abuse. If he has failed in the object, he has at least endeavored to attain it to the best of bis judgment.

All which is humbly submitted.

JAMES KENT,

Chancellor of the State of New-York.

The Counsel's Fees.

1. A retaining fee in each cause, $5; but no retaining fee to be allowed for more than one counsel.

Remarks. The acts of 1789, and of 1801, and of 1813, all allow a retaining fee of $3 75, which is only one shilling more than is allowed for an attorney's retaining fee in the supreme court. There is no kind of comparison between the two cases. A counsellor must be employed on the commencement of every suit in chancery, and probably the allowance of 5 dollars is not more than one fifth of the sum usually demanded. The commencement of a suit in chancery is not a plain business, like issuing a writ at law on a bond or note, for it generally requires great deliberation and reflection, and a patient attention to a conplicated history of facts.

2. Perusing, amending and signing every bill, answer, plea, demur. rer, interrogatories and exceptions, if not done by the person acting as solicitor in the same cause, $2 50.

Remarks. This is precisely the allowance in all the former statutes, but the latter clause of the paragraph was omitted in the act of 1813, and I think it ought to be restored; for if the same person acts in both capacities, he ought not to be allowed for his own labor, and also for revising and amending it.

3. Perusing and settling every final decree that is special in its provisions, $2 50.

Remarks. This allowance is not in the acts of 1789 and 1801, but. is in the act of 1813. It is there but $1 50, but then it is coupled with a like allowance for perusing and settling every petition or special application to the court, and every special order, and all of which allowances I have omitted. If those allowances were all retained, it is probable the charge would be ten times repeated and recovered in the course of a contested cause; for special applications and decretal orders arise at every step of the cause, and if a solicitor cannot draw a petition or a common decretal order without the aid of counsel, he is not competent to his business. But decrees are often exceedingly

difficult to draw with precision, and so as to define and settle with certainty the different parts of the remedy. By confining the allowance to the decree, much costs of suit will be abridged, and by enlarging the allowance in that case to the same sum allowed in the preceding paragraph, no more than justice will be done.

4. Every special motion actually made before the Chancellor, or every actual attendance to oppose a special motion, if the same be not argued $1 50, but if the same be argued, $2 50.

Remarks. This provision is intended to embrace all that is contained in the former statutes about the allowance for motions. The acts of 1789 and 1801, allowed for every motion of course 50 cents, and for every special motion $1 25; but they took care to exclude from the allowance a number of common motions particularly specified, and which are entered of course by the clerks. The act of 1813, gave 50 cents to counsel for every rule or order entered of course, and excluded no common motion. It also allowed $1 25 for every special motion, and $2 50 for arguing every special motion.— It is inconceivable how these common fictitious motions swell a bill of costs. They lead to very great abuse. I have in this case avoided the evil by confining the allowance to special motions actually made before the chancellor. There can be no imposition in that case, and when such motions are actually and necessarily made, the allowance is not unreasonable, for such motions often lead to very great discus

sion.

5. Arguing every plea or demurrer or exceptions, $5.

Remarks. The allowance in the acts of 1789 and 1801, was $3 75, for arguing the plea or demurrer, and $2 50 for arguing exceptions. The allowance by the act of 1813, for the plea of demurrer, was $5, and nothing was said about exceptions, though the argument on them was probably intended to be embraced by the allowance of $8 for arguing on hearing. The allowance of $5 is quite reasonable for argument in either of those three cases. I have known arguments before me on exceptions to a master's report, when the report was on matters of account, to consume several days, and at a steady sitting of from 5 to 7 hours a day. The counsel on such arguments generally earn from ten to twenty times such an allowance.

6. Arguing before a master upon exceptions, or other matters referred, $2 50; but no allowance to be made for more than one counsel.

Remarks. This allowance is the same in the acts of 1789, and 1801; and 1813.

7. Arguing upon every hearing of a cause set down for hearing upon the merits $8; but no taxation for more than two counsel, and this allowance not to apply to cases of bills taken pro confesso, though set down for hearing, as on bills to foreclose mortgages, and in cases of adultery, in which cases of hearing ex parte an allowance only of $2 50, and only to one counsel.

Remarks. The acts of 1789 and 1801, allowed $5 for argument on the hearing, and to one counsel only. The act of 1813, made the allowance I have adopted, and I think it is no more than a reasonable compensation; and I have taken care to limit it to cases where the merits are contested. Every final hearing on the merits, if the cause be important and litigated, as most chancery cases are, is laborious, and requires preparation and labor; and two counsel at least speak in the case. Almost every case seriously argued at the hearing, consumes two or three days, and frequently they consume six or eight days. The allowance is very moderate for the ordinary portion of cases.

Solicitor's Fees.

1. For a retaining fee in every case, $3; but when the same person acts as solicitor and counsel, no retaining fee to be allowed as solicitor.

Remarks. This charge is in the bill of 1813, and it is too reasonable to require explanation. The restriction in the case of the same person acting in both capacities was omitted in the act of 1813, but was in the acts of 1789 and 1801, and I think it ought to be restored.

2. Drawing every bill, answer, plea, demurrer, replication, interro

gatories, exceptions, affidavits and other proceedings, for each sheet containing ninety words, 25 cents; but no record, deed, writing, report, order or proceeding, or part thereof to be in