The Chancellor.
Under the decree of September, 1828, it would have been proper for the defendant H. Rogers to have given notice to the complainants’ solicitor that the money was paid into court. The money having been actually paid, however, before the execution issued, and being deposited in the office where the decree was enrolled, if it had not been overlooked by the register, he would not have included that a-amount in the execution. Both parties appear to have acted [462]*462under a mistake or misapprehension; and no order is now necessary as to the money paid into court, and neither party ' ought to be1 charged with the costs in relation to that part of the application.
With the exception of one or two items, which I shall hereafter notice, the defendants’ solicitor seems to have objected before the taxing officer in the proper form, so as .to call the attention of the officer, ■ and of the solicitor for the complainants, to the specific objections which are now made to the several items complained of as improperly taxed. As to most of those items, the affidavits and evidence produced be-1 fore the-master Were sufficient, on the'part of the complain- . ants, to establish the fact that the services had been performed, and that the number of folios were correctly charged. As the pleadings were produced on the taxation, if the complainants’ solicitor had made a mistake in his affidavit as to the number of folios, the defendants’ solicitor had the means of correcting such mistake' on the spot. Without an affidavit or some other evidence .óf mistake, this court will now take it for ■ granted that' the number of folios was right, and will not take upon itself the labor, of counting these voluminous pleadings. The questions were fairly raised before the master, as to the legality of particular items, and the propriety1 qf their allowance, under circumstances which were undisputed, ánd if he has erred in the taxation, this-court must cor: rect his decision.'1 ■ /
■ The first objection is, that the complainant’s solicitor Was not entitled , to - a retaining , fee, inasmuch as he signed the bill both as solicitor and counsel and a retaining fee for counsel is allowed. The affidavit showed that three counsel at least, other than the solicitor, were employed in the progress of the cause; and two of them were retained generally as counsel. Retaining fees, both for solicitor and counsel, were therefore properly taxed, although the solicitor on record alone signed the bill as counsel. The - objection to the charges for instructions to the clerks of the supreme court and' to the clerk of the county to search for judgments, appears to . have been well taken. ■ In those cases where by the practice of .the court it is necessary to make judgment^ creditors' parties, as in bills of foreclosure, the charge • is proper if the [463]*463service was actually performed. But in this case there was, prima facie, no necessity of searching for judgment creditors of the defendant; and the taxing officer should not have taxed those items without some further evidence to show why such instructions were necessary. Where the object is merely to get an exemplification of a record, to be used as evidence or otherwise, the charge for instructions to search cannot be allowed. The objection as to the number of folios in the bill and other pleadings was made before the taxing officer; but as the pleadings were produced before him, as well as the affidavit of the complainants’ solicitor, I shall presume they were correctly taxed. (Lyon v. Wilkes, 1 Cowen’s R. 591.) There is no affidavit that any mistake was made by the taxing officer in this respect, except as to the original bill. I shall, therefore, not take the trouble of counting the folios in all of these voluminous pleadings to ascertain whether the taxation is right as to the rest. I have examined the original bill, and find it has in fact been taxed at about ten folios too much. That item, including the draft, engrossment, abbreviation and copies of the bill, must be reduced; and the solicitor for the defendant, on the relaxation, may also be permitted to show to the taxing officer that a similar mistake has occurred as to any other pleading or proceeding. Under the fee bill of 1818, those parts of the will which are copied verbatim, must be rejected in allowing for the draft of the bill. ( And see 2 R. S. 651, § 13.)
The subpoena issued upon the original bill could not have exceeded two folios. That upon the supplemental bill, which contained so many parties, probably amounted to more at the rate of 90 words to the folio as the law then stood. But the complainants could only be allowed for one draft thereof. .(Jackson v. Mather, 2 Cowen’s R. 584. 2 R. S. 651, § 12.) The copy of the subpoena to annex to the affidavit of service was unnecessary and is not taxable. The original subpoena might have been annexed; or, the two folios allowed for the affidavit would have been sufficient to have described the process served, without any annexation whatever. The subpoenas for witnesses probably amounted to three folios. The allowance settled by the supreme court, under [464]*464the present fee bill, is three folios for the draft and engrossment of the original subpoena, and two for the draft and copies of the tickets. As the number of words in a folio are now the same in both courts, that must be considered the ■ proper allowance here. By the fee bill of 1813, (2 R. L. 20,) twelve and a half cents were allowed for subpoenaing a witness in this court as well as in all others.’ The same al.loWance is contained in the' revised statutes, in the bill of attornies’ .fees in the. supreme court.' But I beleive, through mere inadvertence, no 'provision is now .contained.in any statute, prescribing the allowance "for serving a subpoena upon-a .witness in this court and perhaps in some other courts. The former allowance must therefore be continued here until the legislature shall otherwise direct.
Under the fee bill of .1818 a precipe or written request to the register to enter a common order was allowed. But the. revised statues having abolished all precipes,'no charge of this kind, or which is in the hature of'an allowance, for a pré- . cipe, can now be taxed. • The only charge to which the solicitor is entitled is fifty cents for attending the register to "enter the order.' I do not perceive however that the master has allowed for any such written ■ request made since the revised statutes went into operation. Interrogatories were necessa- . ry and proper, at the time the parties commenced ' taking their testimony in this case; and the copy annexed • to the-testimony "was to be filed therewith. The master has therefore properly allowed for the engrossment of that copy. The other' copies allowed for on taxation, also appear to have been proper charges at that time. The same allowances are still proper under the present fee bill where interrogatories are annexed to a commission, as directed'by the' 72d rule. But. the charge for notice that the copy delivered was á copy of the interrogatories, was improperly allowed; and alf similar charges, must be rejected. ' When a party serves ,a¡ copy of a bill, answer; order, interrogatories or other proceeding, and which on its face purports to be a copy of such ■ pleading or proceeding, it cannot be necessary to give notice to the solicitor on whom it is served that it is -what, it purports to be. It is' irregular to serve a paper purporting to be a copy Of the bill or answer in a cause, if the-1 [465]*465original has not been actually filed ; or to serve a copy of an order which has never been made. All notices which were not required by the practice of the court, should have been rejected by the taxing officer, as useless and unnecessary services.
The affidavit of the service of the notice of order to answer appears to have been necessary and proper, as it formed the evidence on which to found an order to take the bill as confessed. If the affidavit was actually made, it was properly allowed in the taxation, although its use was after-wards rendered unnecessary by the putting in of the answer. But the affidavit of service of notice of the examination of a witness is not usually made, or needed. The charge for this affidavit therefore ought not to have been allowed without some evidence to explain how it became necessary to make and use such an ffidavit, which could only be wanted on some special application to the court. If several witnesses were to be examined at the same time and place, only one notice of examination, embracing the names and additions of all those witnesses, should have'been taxed. A separate notice of the examination of each witness will never be given in such a case, except for the mere purpose of swelling a bill of costs. The notices of the examination of the several witnesses, for the examiner, are not required by the practice of the court, and should have been disallowed.
The affidavits appear to establish the fact of the attendance of the witnesses, as taxed by the master. The claim for a further allowance for travel in coming before the examiner and returning, if the distance was less than fifteen miles in travelling both ways, was properly rejected. Such an allowance ought not to be made, unless there is evidence that the witness was required to attend so early, or was detained so late, that he could not come or return, within the usual hours of travelling, on the day. of his examination. If the whole distance both ways is over fifteen miles and under thirty, one day should be allowed for travel ; and if over fifteen miles each way, the witness should be allowed one day to come and one to return, independent of the time he is detained for examination. Where travel is claimed, the affida[466]*466vit should. show the probable distance travelled by each wit-. ness. (Shufelt v. Rowley, 4 Cowen’s R. 58.) T he charges for expenses paid to the witnesses, beyond the amount of ■the per diem allowance, were properly rejected. They were not taxable against the adverse party.
Thosé depositions which were taken on and before the 24th of April, 1823, were properly charged at 25 cents for the drafts. On' that day the allowance for drawing depositions was reduced to 20 cents. Those taken subsequently can only be taxed at the latter rate ; and the engrossment of all must be taxed at twelve cents only. Although the depositions were drawn and engrossed by the .solicitors, for the sake of convenience,, that will not authorize them to tax at a higher rate than if the service had been performed by the proper officer of the court. The copy for the adverse party was properly allowed, under the stipulation ; as he would ■ have been obliged fi> pay the exaniiner' for a like copy, and at the same rate. The allowance of twelve and a half cents for swearing each witness was rightfully substituted by the taxing officer, instead of the gross sum paid to the examiner for his travelling expenses, <£c. in performing that service. Although the manner in which the testimony was taken in this case may have saved some expense to the parties, it ' would be a dangerous innovation to permit the taxing officer, upon such a suggestion,, to départ from the allowances as' fixed by the fee bill. The charges for serving the copy of the' depositions, arid for the notice of its being a copy, should have been wholly disallowed. There is no allowance in the fee bill for serving a paper of that description; and the notice was unnecessary for the reason before stated.
• In the case of Decaters v. La Farge, at the last may term" (a) this court decided that copies of the pleadings, depositions, &c. for the use of counsel were not taxable under the fee bill of 1818, nor under the,fee bill in the revised statutes. The ..abbreviation is all that is necessary; especially where the solicitor is allowed one copy in addition to the draft for his own use. .He can loan that copy to his counsel if it .should be desired [467]*467by the latter to examine the pleadings more at length. The complainants were obliged to furnish copies of all the pleadings and depositions, at the August term, 1828; as the rule of the 23d of June did not go into effect until the end of that term. The charge for those copies is therefore correct, with the exception of the mistake as to the number of folios. But the master has inadvertantly again allowed for abbreviating the supplemental bill at that term for the use of counsel, although the abbreviation had before been allowed. The charge for an abbreviation of the report was improper, as no such allowance is contained in the fee bill.
The question whether it was not necessary to make all the-heirs of Thomas Rogers and of T. Rogers, junior, parties to this suit appears to be a very plain one. And if Rogers had made the objection in his answer, instead of raising it for the first time at the hearing, the complainants would have been charged with all the extra expense which was produced by their neglect to amend their bill, so as to bring the proper parlies before the court, in an earlier stage of the cause. (Mitchell v. Bailey, 3 Mad. R. 61. Jac. R. 163.) Both parties were probably equally in fault on this subject, as the facts were equally in the knowledge of both. For this reason I have some doubts whether each should not have been compelled to bear his own share of the unnecessary expense, which has arisen in consequence of not sooner correcting this mistake, and of not making the objection the first opportunity. But as Chancellor Sanford made no disposition of those costs when he ordered the supplemental bill to be filed, and my attention was not called to this subject at the time of making the decree of September, 1828,1 am inclined to think the complainant’s share of them must be allowed against the defendant, under the terms of that decree. As the greatest part of the supplemental bill, however, is a mere copy of the original bill, and of the answer of H. Rogers thereto, the solicitor for the complainants must not be allowed for the draft of that part, nor for the second abbreviation thereof for the use of counsel. The costs of opposing the motion made by the defendant, in which the opposition was successful, are properly taxable [468]*468as costs .in the cause; nothing being said as to those costs in the order. ■ (1 Sim. & Stu. 357.)
The precipe or written request to enter the order to answer, previous to. July, 1824, was not taxable even under the old fee bill; as it was at that time a special order, made by the court. Those charges should' therefore have been disallowed. The double charges for notice to the clerk to set down the causé, and for notice of the issue, &c. must be corrected as often as it occurs, according to the decision in Doe v. Green,
Two charges for postage, in the'whole amounting. to nearly $28, are taxed in gross, without any specification of the items. The statute, (2 R. S. 653, §. 7,) provides that disbursements shall not be allowed without an affidavit specifying the items thereof particularly. .Under this provision,. every item, for postage- or other. disbursements, should be stated particularly in the bill óf costs or in the affidavit; spe[469]*469cifying briefly the occasion and circumstances of the expenditure : as, “Postage on letter to register enclosing bill to be filed, SO,50; Postage on letter directing the enrolment of decree,” SO,25, &c.; so as to enable the taxing officer to judge of the necessity and reasonableness of each item of the disbursement. This specific objection does not appear to have been made before the taxing officer, or it would probably have been obviated, as there was a general affidavit as to the correctness of the charge. But it is the duty of the officer to see that this and other similar directions of the statute are complied with, whether the taxation be opposed or not. The taxation must be reviewed as to these charges ; but the complainants are to be permitted to furnish to the master, on the retaxation, a bill of the items of postage, with a new affidavit as to its correctness.
The charges for attending the master to obtain his signature to summonses, and to procure his report after it was completed, are not found in the fee bill, and must be disallowed. The item in the fee bill for “ attending a master upon any matter referred to him not herein otherwise provided for,”&c. will be understood by referring to a similar allowance in the act of 1818, and to Chancellor Kent’s remarks thereon, in his report to the legislature. (Blake’s Prac. 1st ed. app. 122.) It was meant to provide a general allowance for attending on references to the master in all cases, except references to take and state accounts and to tax costs, which are otherwise provided for in the fee bill. Under a different item in the fee bill, the solicitor is entitled to 50 cents for attending before the master, to settle the draft of the report, when summoned for that purpose, and on other occasions of that kind. But he Is not allowed for attending before the master merely to get his signature to a summons for the adverse party, or to obtain the report after it has been completed. The allowance for drawing charges, at the time the services contained in this bill of costs were rendered, was 20 cents instead of 25 cents, as allowed on taxation here. The engrossment is also improperly taxed. The allowance for engrossed copies to file is only for such copies ás are directly or ultimately to he filed in the regis[470]*470ter’s or clerk’s office. It does not extend to those which are merely brought into the master’s office for the purposes of the reference. These are to be taxed at the usual rate allowed for ordinary copies. The same remarks are applicable to the copy of objections to the draft of the master’s report, which was also-improperly taxed as an engrossed copy to file. The charge for the draft of a release prepared for one of the defendants to sign,'to save the. expense of making him a party to the suit, appears to be proper. The proceedings to obtain special directions to- the master, and to carry into effect the decree of Septetnber, 1828, were necessary, and were properly taxable as costs in the cause.
The complainants claim several items which they allege were erroneously stricken out on taxation ; and they ask for an allowance of those items, if a retaxation is directed. In ordinary cases, if either party is dissatisfied with the decision of the taxing officer, as to any particular items of the bill of costs, it is the duty of such party to bring those questions directly before the court, by an application on his part, although the adverse party applies for a retaxation as to other items. On the other hand, the court does not usually examine or direct a retaxation as to any items in the bill where the decision has been against the party appealing, unless the objections to the decision of the taxing officer, either as to the particular items or as to some general principle in which they are embraced, are distinctly referred to in the petition or other papers upon which the application for retaxation is founded. But under the circumstances of this case, where the delay of the defendant to appeal until after the issuing of the execution prevents a direct application from being made on the part of the complainants, I think it right to look into their objections at this time, and to direct the master to review his taxation as to those items also, if any of them have been improperly rejected. Although the reasons for the delay on the part of the defendant áre sufficiently explained, that delay must not be permitted to prejudice the other party. Some of the items claimed, I have already noticed.
The charge for instructions to the surrogate was properly rejected. It is somewhat doubtful whether even the exem[471]*471plification of the will from the surrogate’s office could have been necessary after it had been set out at full length in the answer of H. Rogers to the original bill. It may, however, have been procured before that time, though charged afterwards. The original subpoena was obtained from the clerk, previous to the act abolishing the office of clerk in chancery at Albany; and no orders for the issuing of subpoenas were ever entered in his office. They are now entered under the general order of January 9th, 1830. The manner of serving the subpoena on a defendant is prescribed by one of the standing rules of the court; and the charges for instructions as to the manner of serving it, and for disbursements, beyond the allowance fixed by the fee bill, were properly rejected by the taxing officer. Several items now claimed by the complainants were properly stricken out of the bill, on the ground that they were charged a 'second time. Others were properly rejected as not taxable, under the decision in Doe v. Green, before referred to, and other recent decisions, which it is not necessary now to refer to particularly.
Several charges for the solicitor’s fees on special motions and petitions were rejected by the taxing officer ; I presume, upon the ground that the solicitor did not attend in person, or that he also acted as' counsel in the cause on the same application. This does not appear to be one of those cases where a personal attendance of the solicitor is necessary to entitle him to make the charge. The service is generally performed by his agent. But if the solicitor was himself the counsel and has been allowed fees in that character for his services on the application, he cannot be allowed fees for attending also as solicitor on the same application. (2 R. S. 651, § 8.) The allowance to the solicitor for atténding on the hearing of the cause is placed on a different footing, by the fee bilL And it is perfectly evident, as well from the wording of the law as from the note of Chancellor Kent, who framed this provision and incorporated it into the fee bill of 1818, that it was never intended to grant the allowance for a mere constructive attendance. To entitle»the party to make that charge, there must be an actual attendance in person, on the [472]*472argument, by the solicitor on record. .The employment of another solicitor to attend as his proxy in this case was not a sufficient: compliance with the provision of the'statute to justify the allowance of those items on the taxation.
The affidavit of the solicitor, exhibited to the master, shows that the services of perusing, amending and signing the pléading, interrogatories, exceptions, dec., were actually performed. It also appears that several counsel were employed in the progress of the cause. But these proceedings are only signed by the solicitor on record, who was also a counsellor and the affidavit does not state that those services were in fact performed by any other person. This affidavit may therefore be true, and yet the real fact may be that none of the other counsel in the cause ever perused the drafts, or examined the pleadings, until after they were engrossed and filed. Where the name of the solicitor alone appears as counsel on the engrossed pleadings, it -requires strong evidence to establish the fact that other counsel examined and signed the drafts. If such was the case here the affidavit should have been direct and positive. The master was therefore right in disallowing these charges. Had the original bill,, as drawn by the solicitor, been carefully examined by the other counsel in the cause,.they might have suggested the necessity of making all the heirs • parties thereto ; and thus have saved the extra expense of the supplemental proceedings. Solicitors, who áre many of them, only junior counsel, are not aware of the,importance of submitting the draft of their pleadings, and particularly of the original bill, to the scrutinizing examination of the senior counsel in the first instance. The services of such counsel in contested cases are frequently of more importance to the client in framing the bill or in preparing the. answer, than upon the final argument of the cause before the court. And I am every day compelled to.regret that the preparation of the pleadings in litigated causes in chancery, and the signature of .counsel thereto, are by too many considered as merely matters of form. ■ A very considerable proportion of the actual expense of litigation in this court,' is unnecessarily produced by the neglect of the solicitor to con-[473]*473■suit with the counsel in the cause, at an early period, as to the framing of the bill, and as to the necessary parties to the suit.
The charge for perusing and settling a decree cannot be allowed on settling a mere decretal order. It is confined to a final decree in the cause. The charge for settling the final decree was allowed by the master, and all the others Were properly rejected. ■ The charges for solicitor’s fees for attending the chancellor to settle orders and decrees were not taxable. ' No provision for such services is contained in the fee bill. It is neither an attendance on petition of special motion. . The so- ,■ licitor is allowed for attending the register to settle the decree according to the decision of the court. If the register has any difficulty in settling it, he submits the draft and objections to the decision of the chancellor. (For the origin ■of this practice see North's Life of Lord Keeper Guilford, 202.) If the solicitors, for their own convenience, submit the question directly to the chancellor, as they frequently do, no additional charge should be made.
An affidavit of regularity, containing ten folios, was unnecessary. The rule which requires an affidavit to be produced on the hearing, confines it to mortgage bills which are taken as confessed. But it may also be proper in other cases, where the bill is taken as confessed as to any of the defendants, to produce a short affidavit, or the certificate of the register, on the hearing, stating in general terms that the bill has been regularly taken as confessed against those parties, and specifying whether it was done after an appearance, or upon personal service of the subpoena, or on a proceeding against the defendants as absentees. In no ordinary case, however, can it be necessary that the affidavit should exceed two or three folios. To that extent it may be allowed in this case, as it was actually made and used.
The copies of the opinion of the court, for the master on the reference, were not taxable.’ The decree or order of reference contains the directions which are to govern the master in taking the account. The decree contained no directions to the defendant, H. Rogers, to execute a release. An allowance, therefore, for preparing such release, could not be taxed in anticipation that it would be wanted. In the [474]*474case of Burling v. Coggshall, in September, 1830, on appeal from the decision of the vice chancellor of the first circuit, if was settled that the solicitor was entitled to charge for .the notice of taxation, in addition to the allowance for a copy of the bill of costs to be delivered to the adverse party w^h such notice. The intention of the revisers in changing the phraseology of the last item of the fees allowed'to solicitors, was to define with more precision- the object of the delivery of the copy of the bill of costs before taxation; not to reduce the amount, nór to deprive the solicitor of the allowance for notice of the taxation of such bill, to which he was entitled under the act of 1818. This item for notice of taxation must therefore be allowed. ' - '
The bill of costs in this case must be retaxed by the taxing ‘master of the fourth circuit; on the principles here stated; and without - costs to either party. The items not objected to of claimed on this application, and those as to which nothing is said in this opinion and which are not embraced in the principles here laid down, are to remain as previously taxed. The proceedings on the execution must be stayed until eight days after the retaxation is completed. At which time, upon producing to the sheriff the' certificate of the master stating the amount at which the costs are taxed, he is to proceed and collect the amount on the execution, if the same is not sooner paid to him by the defendant. -
It is to be regretted that appeals from the taxing officers in relation to questions of costs should be so frequently made to this . court. These contests are calculated to injure the profession, in the eyes of the community, and- to bring its members into disrepute. The legislature have provided a fair and liberal fee bill for- the practitioners in this court; and they should be satisfied with charging for such services as are clearly within its provisions. But if so much of the time of the court is to be consumed in these constant ■struggles' to get compensation for fictitious services, or to ob: tain allowances of a doubtful character, the legislature will be compelled to interfere and to change the mode of compensating for professional services. The correct rule for fair practitioners is to make no charge but for services actually and necessarily performed, and which Some clearly with[475]*475in the provisions of the statute. And the proper rule to be observed by the taxing officer is to reject a charge if he has doubts as to its correctness. Even the taxation of an item will not protect the solicitor from an action for treble damages, if he charges and obtains payment for services which were not actually performed; or if he receives compensation for a greater number of folios than were contained in the proceedings which were drawn, engrossed, or copied by him. (2 R. S. 650.)
These remarks are not made in reference to the bill of costs in this particular case, but to call the attention of the bar to the subject, as one in which they all have a deep interest ; and in which the character and welfare of the members of this most honorable and useful profession is, in some measure, involved.
Ante p. 347.