Majority
p. 300[571] Trustees of Salina vs. Gilbert.
Headnote
Where a plaintiff fails to recover a sum sufficiently large to entitle him to costs, he is liable to pay his attorney full supreme court costs, if the demand put into the attorney’s hands for collection exceeded $250.This was a motion by the plaintiffs for the re-taxation of their attorney’s bill of costs. The plaintiffs recovered in an action of assumpsit less than $50, and consequently were not entitled to tax costs against the defendant. Their attorney demanded a full bill of supreme court costs. The plaintiffs insisted he was entitled to only common pleas costs.
By the Court,
Had the plaintiffs recovered a sum which would have entitled them to costs as against the defendant, the attorney could not have demanded of his clients any greater or other costs than they might have demanded of the defendant in the suit. (Scott & Wigram v. Elmendorf 12 Johns. R. 315.) But the plaintiffs having failed to recover a sum entitling them to costs, the attorney may claim to be paid such costs as the plaintiffs would have been entitled to recover, had they succeeded in recovering the demand put by them into his hands for collection; that is, he may claim supreme court costs,' if the demand exceeded $250; if otherwise, only common pleas costs.
Motion denied.