GILLIS, use, &c. vs. HOLLY

GILLIS, use, &c. vs. HOLLY. i? The attorney of the successful party is entitled to the tax fee'in a'-' suit, and not the party himself. Enuoa to the Circuit Court- off Covington. Tried before the ' Hon. -E. Pickens. ■ This was an action of assuiUpsit by the' plaintiff in error against the defendant, to recover on the common counts, for ser- ■ vices rendered as an attorney and counsellor at law. The plain- - tiff’s witnesses testified that his-services were worth one hundred'-5 dollars, exclusive of the tax fees, -which amounted to one bun- • dried and ’-thirty-five, -and which'-the plaintiff had received. The •' court .charged the jury, that the tax fee allowed in a suit does ■ not'belohgith’the attorney in the ease, but to the successful par-aha'tha^'the'attorney has no right to receive it and approprff • ate it to -his own use w-itMfeut the consent of his client. The plaintiff- excepted.-to this-charge, -ambnow assigns it-as br-rdiv- Wat.ts., Jud.ge & JacksoN, for plaintiff in error. HenRy,. contra. [MAJORITY — COLEMAN, J.] COLEMAN, J. The question raised for our decision in this rase is, who is entitled to the fee, usually called the tax fee, collected of tho unsuccessful party on the final decision of a cause in a court of record. The act of 1812 declares, “that tho clerks, sheriffs and other officers and persons hereinafter named, shall be entitled to demand and receive for the services hereinafter mentioned, the fees thereto respectively annexed/’ &c., and in the same act coun-sellors and attorneys at law are allowed the fees therein named for prosecuting or defending suits. By the act of 1815, it is declared “ that the party prevailing in any suit, which may be brought in any of the courts of this State, shall be considered as entitled to the tax fee allowed the attorney, and recover the same against the party cast in the suit.” There was no provision in the first act, saying from whom and in whose name the attorney’s fees should be collected, and we think tho last act was intended to remedy this defect and not repeal the first act. If there was any doubt about this construction of the acts, we ought, certainly, to consider it as fully settled by tho continued practice of the courts of this State for tho last thirty years, to give the tax fees to the attorney, and not to the client. , The court bolow erred in ruling to the contrary, and the judgment must be reversed and the cause remanded.