of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment, by the court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just. a. Service of orders-proof.-Before an attachment can issue to bring a party before the judge for disobedience of an order in supplementary proceedings, it must be made to appear that the order was lawful, and that it was duly served. The manner of service should be stated. De Witt v. Dennis, 30 How. 131. Where the only proof or service of an order was by affidavit of an attorney, who specified several such orders without giving copies of any of them, and stated that certain of them had been personally served by the sheriff, held, not sufficient to grant an attachment. Ib. is not sufficient to render the process void, but simply voidable. Kelly v. McCormick, supra. As to the question whether the judge alone, who made the order disobeyed, can punish for the contempt, the decisions are conflicting. People ex rel Kearney v. Kelly, 22 How. 309; S. C. sub nom. Kearney's Case, 13 Abb. 459; Dresser v. Van Pelt, 15 How. 19; S. C. 6 Duer, 687; Aff'g 13 How. 331; S. C. 4 Abb. 93, hold that either the judge who made the order, or the court, at special term may punish for the disobedience of such order. And see the same doctrine apparently, in Lathrop v. Clapp, 40 N. Y. (1 Hand), 328, 335; - irregularity.-A service of an order, S. C. below, 23 How. 423, sub nom. Clapp in supplementary proceedings, made without v. Lathrop. v. Lathrop. But Wicker v. Dresser, 14 exhibiting the original order of the judge, is How. 465; S. C. 34 Barb. 353; Shepherd irregular, but not invalid, and cannot be en- v. Dean, 13 How. 173; S. C. 3 Abb. 424, tirely disregarded; the party served must ob-hold, that only the judge who made the order ject to the mode of service by appearance, and his omission so to do will be regarded as a waiver. Billings v. Carver, 54 Barb. 40. -witness.-On an examination of a witness before a referee, it is not necessary to issue a special order, reduced to writing, requiring the witness to answer every question which he may refuse, and to go through the formality of serving the order on the witness; it is a sufficient service if the witness is present when the referee orders him to answer. Lathrop v. Clapp, 40 N. Y. (1 Hand), 328, 336; S. C. below, 23 How. 423, sub nom. Clapp v. Lathrop. ard v. b. Jurisdictional.-The attachment should be made returnable before the judge who grants it. Kelly v. McCormick, 28 N. Y. (1 Tiff.), 318; S. C. below, 2 E. D. Smith, 503; Dresser v. Van Pelt, 15 How. 19; S. C.6 Duer, 687; Aff'g S. C. 13 How. 331, sub nom. Wicker v. Dresser; S. C. 4 Abb. 93; ShepDean, 13 How. 173; S. C. 3 Abb. 424; Matter of Smethurst, 2 Sandf. 724; S. C. 3 Code R. 55; 4 How. 369. And not before one of the judges of the court at chambers. Kelly v. McCormick, supra; contra, Dresser v. Van Pelt, supra, in the first district, and see § 27. But if the judge before whom the attachment is returnable, happens to be holding special term at the time the party is brought before him, this does not render the proceeding or process void. id. An irregularity in making the attachment returnable before the wrong judge, or in the wrong manner, disobeyed, can punish the disobedience. The judge who made the order of reference may punish the disobedience of the order of the referee requiring a witness to answer. Lathrop v. Clapp, supra. And the order of punishment need not state that the proceeding had been impeded, impaired, prejudiced or defeated by the misconduct of the defendants. Ib. c. Nature of the proceeding.—The proceeding to punish a party for disobedience under this section is a proceeding in the action, and not a special proceeding. Seeley v. Black, 35 How.369; Dresser v. Van Pelt, 15 id. 19; S. C. 6 Duer, 687. d. Order to show cause.-There are two modes of punishing a party for a contempt-either by granting the attachment in the first instance, or by issuing an order to show cause why an attachment should not issue. Pitt v. Davison, 37 N. Y. (10 Tiff.) 235; S. C. 34 How. 355, and 4 Trans. App. 266; 3 Abb. N. S. 398. An order to show cause why an attachment should not issue is the usual mode of commencing proceedings for the punishment prescribed in this section in the first district. Matter of Smethurst, 2 Sandf. 724; S. C. 3 Code R. 55; 4 How. 369. The order to show cause why an attachment should not issue against a party for the violation of an order, is not the foundation of the power to commit; the jurisdiction is derived from the original order which has been disobeyed. Myers v. Janes, 3 Abb. 301. e. Papers - affidavits. - The papers on the application for an attachment are usually entitled in the action. Pitt v. Davidson, 34 How. 355; S. C. 37 N. Y. (10 Tiff:), 235, and 3 Abb. N. S. 398; 4 Trans. App. 266. Although they may entitled "People ex rel. Brown v. Andrews, 1 Barb. 227; People ex rel. Young v. Craft, 7 Paige, V. 325; Stafford v. Brown, 4 id. 360. Where the attachment goes against a witness or one not a party to the suit, it was the practice always to entitle the papers, according to the latter mode, in all proceedings subsequent to the attachment, Stafford v. Brown, supra. On an application for an attachment, affidavits, setting forth the grounds of such application should be presented, and a copy thereof should be served with the attachment. Ward et al. v. Arenson, 10 Bosw. 589; Matter of Smethurst, 2 Sandf. 724; S. C. 3 Code R. 55; 4 How. 369. f. Interrogatories.-The witness against whom the attachment issues, should be furnished with a copy of the interrogatories, where the contempt is denied, if he require such copy. De Witt v. Dennis, 30 How. 131. But where the defendants are before the judge, on an order to show cause, and have been served with the affidavits and the order, and have full opportunity to answer, the interrogatories need not be filed. Lathrop v. Clapp, 40 N. Y. (1 Hand), 328, 335; S. C. below, 23 How. 423, sub nom. Clapp v. Lathrop; Pitt v. Davison, 37 N. Y. (10 Tiff.), 235; S. C. 34 How. 355; 3 Abb. N. S. 398; 4 Trans. App. 266; Watson v. Fitzsimmons, 5 Duer, 629. g. Payment of money.-Disobedience of an order to pay a sum of money is pun ishable immediately, by a precept for the imprisonment of the disobedient individual. Brush v. Lee, 6 Abb. N. S. 50; People ex rel. Pease v. King, 9 How. 97. But if an order to show cause be issued instead, the defendant cannot object to the mode of proceeding. Brush v. Lee, supra. Nor is it an objection, that the original judgment was for the payment of costs only. Ib. h. Disobedience of injunction order. On the application for an attachment to punish a person for disobedience of an order forbidding the transfer of funds, it is necessary to show that such money was due to, or earned by, such person at the time of the service of the order. Gerregani v. Wheelwright, 3 Abb. N. S. 264. One who draws money from a bank, and applies it to the use of himself or family, after the service of an order forbidding transfer, etc., of any funds, is liable to punishment therefor, although the fund in the bank was marked "in trust." People ex rel. Noel v. Kingsland, 5 Abb. N. S. 90; S. C. 3 Keyes, 325; 1 Trans. App. 270. An order requiring a person to pay a fine or be committed, although informal, and not specifying clearly the grounds of the order, will be upheld, especially if there are accompanying papers showing that the party was convicted of having paid away money in violation of an order. Reynolds v. McElhone, 20 How. 454. i. Confessing judgment. A party who violates an order forbidding transfer, etc., of property, by confessing judgment to another for a fictitious debt, thus creating a lien upon his real estate situate in another State, is guilty of a contempt, finable to the amount of the judgment. Fenner v. Sanborn, 37 Barb. 610. j. Bond.-The bond given under an attachment requires two sureties, but if only one surety is given, it will not be void, but only irregular. Morton v. Campbell, 14 Abb. 410; S. C. 37 Barb. 179. But the sheriff who allows a prisoner to go on such a bond, is liable for an escape. id. An irregularity in the process on which the arrest is made, is waived by the prisoner giving bail. Kelly v. McCormick, 28 N. Y. (1 Tiff.), 318. A bond conforming to the requirements of the statute, with the exception of the omission of the seals, will be sustained in an action thereon. id. It is not absolutely essential that the party bailed should appear on the first or return day; the second day will do. People v. Munroe, 15 How. 494. k. Power of county judge.-Disobedience of a subpoena directed to a witness, requiring him to attend before a county judge and testify in proceedings supplementary to judgment, cannot be punished by such county judge where the judgment was entered in the supreme court. People ex rel. Brunett v. Dutcher, 3 Abb. N. S. 151. The subpoena issues from the supreme court, and is tested in the name of one of its justices, and can only be punished by that court. id. Where a county judge, upon an adjourned day of the hearing of an order to show cause why a debtor, not appearing upon a previous order for his examination, should not be punished, fails to be present so that the hearing cannot proceed, the question arises whether such judge loses jurisdiction thereby so as not to be able to punish for the contempt; and is not decided in Myers v. Janes, 3 Abb. 301. 66 1. Costs.-The costs of the proceeding by attachment are to be taxed as costs in the action," not as "costs of an action" which are allowed in special proceedings. Seeley v. Black, 35 How. 369. m. Order of committal.-An order of commitment, which does not state the particular misconduct or offense to be punished, is void. De Witt v. Dennis, 30 How. 131. An order to punish a witness for contempt, in not answering before a referee, need not specify that the proceedings had been impeded, impaired, prejudiced or defeated by such misconduct. Lathrop v. Clapp, 40 N. Y. (1 Hand), 328; S. C. below, 23 How. 423, sub nom. Clapp v. Lathrop. The order punishing a party for a contempt was modified, on its appearing that the contempt was incurred by mistaken advice of counsel as to the effect of an irregular order, so as to give the party an opportunity of doing what the previous order required, or, as an alternative, suffer the penalty. Billings v. Carver, 54 Barb. 40. In the Matter of Cavanagh, a question arose whether a commitment in Kings county should be to the penitentiary or to the county jail. And it was decided that if the commitment was for more than thirty days, the penitentiary was the place of commitment. 10 How. 27; S. C. 1 Park. 588. But if such sentence or judginent were erroneous, the error cannot be corrected on habeas corpus. People v Cavanagh, 2 Park. 650; S. C. 2 Abb. 84. And if the court of oyer and terminer assume to decide the question on habeas corpus, the supreme court will reverse the decision on certiorari or writ of error. Ib. n. The non-imprisonment act.-The abolishing of imprisonment for failure to pay costs, has no application to the case of a judgment debtor, in supplementary proceedings, in contempt for not paying a judgment and costs under an order previously granted. People ex rel. Kearney v. Kelly, 22 How. 309; S. C. 13 Abb. 459, sub. nom. Kearney's Case. And see note 1, supra. or 0. Vacating an order deceit.Where the contempt of court charged, consisted of procuring by deceit, from a justice, an order vacating a prior order made by him, in a supplementary proceeding, held, that if such a "deceit" "abuse of process and proceedings" of a court could be punished as for a contempt as regards the parties implicated, no such result will follow where other parties are not prejudiced by it. De Comeau v. People, 7 Rob. 498. In this case, the order obtained by the "deceit," or supposed supposition of facts, was a nullity, so that the plaintiff might have gone on with his proceeding. Ib. p. Motion to set aside.-Questions affecting the validity of the order disobeyed, cannot be raised for the first time in opposition to a motion to commit for contempt; | they should be raised by the defendant on a motion to set aside the proceedings. Hilton v. Patterson, 18 Abb. 245. On a motion to commit for contempt for disobedience, the only questions that can be raised are those affecting the regularity of the proceedings under the order, and the excuse for disobeying it. Ib. q. Appeal.-The order punishing a party for contempt must be filed and entered with the clerk before an appeal can be brought. Marshall v. Francisco, 10 How. 147. An order punishing a party or witness for a contempt in not answering questions in supplementary proceedings, is appealable. Lathrop v. Clapp, 40 N. Y. (1 Hand), 328; S. Ĉ. below, 23 How. 423, sub nom. Clapp v. Lathrop; Forbes v. Willard, 37 How. 193; S. C. 54 Barb. 520. Whether an order discharging a party from an attachment for contempt is appealable, seems to be doubtful. People ex rel. Pease v. King, 9 How. 97. On an appeal from an order punishing a witness for contempt, the objection that the execution on which the proceedings were founded was insufficient, cannot be raised for the first time. People v. Marston, 18 Abb. 257. On the application for an attachment to punish the debtor for disobeying an order of the referee to deliver property to a receiver, such debtor will be heard by way of appeal from the decision ordering the delivery. Dickerson v. Van Tine, 1 Sandf. 724. r. Escape.-The sheriff is liable to the party aggrieved for damages sustained by the escape of the prisoner committed under this section. See Loosey v. Orser, 4 Bosw. 391, note j, supra. 8. Discharge-inability.-The person in contempt may apply immediately to be discharged on the ground of inability to perform; the granting of the application is discretion ary. Maass v. La Torre, 6 Abb. N. S. 219 This clause applies both to commitments for contempt and for fraud. id. If the debtor, who has been committed, cannot pay the debt, or give security, or make the assignment, he cannot perform the act required by the law of 1831 chap. 300, to enable him to obtain his release, and he may be discharged. id. Still, the granting of the application is discretionary, and if a proper case is not made out, the petitioner will be kept in confinement. Ib Of the costs of civil actions. Fee bill abolished; allowances given, termed costs. 305. When allowed to defendant. 306. When allowed to either party in the discretion of the court. 307. Amount of costs allowed. 308. Allowances, in addition, of a percentage on the recovery or claim. 317. Costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. 318. Costs on review of a decision of an inferior court, in a special proceeding. Costs in actions by the people. 319, 320. 321. Costs against assignee of cause of action, after action brought. 322. Costs on a settlement. 303. [258.] Fee bill abolished; allowances given, termed costs. All statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions, and all existing rules and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor or counsel, for his compensation, are repealed; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums, by way of indemnity, for his expenses in the action; which allowances are in this act termed costs. I. CONSTRUCTION OF SECTION. a. This section does not furnish rule in action between attorney and client. In an action between an attorney and his client, to recover for services rendered, costs, as taxed by the clerk under the Code, are not the measure of compensation for such services. Proof of the value of such services must be given. The plaintiff cannot have judgment in such an action, on no other proof of the value of such services than that shown by the judgment roll. Garr v. Mairet, 1 Hilt. 498; Moore v. Westervelt, 3 Sandf. 762; S. C. 1 Code R. N. S. 131; Stow v. Hamlin, 11 How. 452; Bartle v. Gilman, 18 N. Y. (4 Smith), 260; S. C. 17 How. 1; Easton v. Smith, 1 E. D. Smith, 318; Sanford v. Ruckman, 24 How. 521. This case is said to have been reversed. See S. C. 35 How. 642 (n.) The law will not presume an agreement to allow to the attorney what the statute gives to a party as his compensation. Stow v. Hamlin, 11 How. 452. b. Agreement between plaintiff and attorney, compromise of suit.In this case the parties agreed to take and - Where c. No special agreement. there is no special agreement, prima facie, the taxable costs were the measure of the attor- (n.); S. C. 24 How. 321; id. 480 (n.); Keenan d. Each matter judged by itself.The right of an attorney to compensation for services rendered in one matter, is not forfeited by his misconduct and breach of trust in another matter entirely distinct from the first. Currie v. Cowles, 6 Bosw. 452. e. No merits in case.-An attorney was retained to conduct a cause pending on appeal. Held, that evidence tending to show that there were in fact no merits in the case, was irrelevant, and could not be introduced in an action commenced by the attorney for his services. Case v. Hotchkiss, 3 Keyes, 334; id. 3 Abb. N. S. 381; 1 Trans. App. 285; 37 How. 283. f. From what time attorney's account draws interest.—If a client retains an account, without objection, rendered to him by his attorney for professional services, it becomes an account stated, and from the time it was rendered interest may be collected. Ib. g. Discontinuing action, no bar to recovery.-Semble, that where an attorney is conducting several actions for a party, he does not bar his subsequent right to a recovery for services, by commencing an action against his client, and attaching his property. So held, even where the services for which he sought to recover were rendered in actions still pending. Porter v. Ruckman, 38 N. Y. (11 Tiff.), 210; S. C. 6 Trans. App. 65. h. Compulsory reference cannot be ordered. It is not proper to order a compulsory reference, in a case where there is a difference of opinion between attorney and client as to the measure of compensation. Fox v. Fox, 24 How. 409. i. Champerty abolished.-The effect of the provisions of the Revised Statutes, by which the old statute of 1 Rev. Laws, 1813, 172, against champerty and maintenance was abolished, sanctions the conclusion that not a vestige of the law of maintenance or champerty remains in this State, with the single exception respecting titles to land, and of the provisions of the Code respecting assignment of causes of action. Sedgwick v. Stanton, 14 N. Y. (4 Kern.), 289; Durgin v. Ireland, id. 322; Satterlee v. Frazer, 2 Sandf. 141; Benedict v. Stuart, 23 Barb. 420; Voorhees v. Dorr, 51 Barb. 580. In j. Rule notwithstanding § 303 of the Code. It is still illegal, notwithstanding this section, for an attorney to make a contract with his client, that he (the attorney) will carry on the suit at his own expense, and be himself responsible for the costs. Brotherson v. Consalus, 26 How. 213. this action, the restrictions upon transactions between attorney and client are discussed at great length. See, also, Fish v. Fish, 39 Barb. 513; Harrington v. Long, 2 Mylne & Keen, 590; Anderson v. Radcliffe, 1 Ellis, B. & E. 806. k. Agreement between attorney and client.-An agreement of this nature, where the attorney is promised large compensation, is regarded with great suspicion by the court. In case the meaning of the instrument is not transparently obvious, the most favorable construction, in favor of the client, should be put upon it. Hitchings v. Van Brunt, 38 N. Y. (11 Tiff.) 335; S. C. 5 Abb. N. S. 272. 1. Agreement need not be in writing. A valid agreement may be made be m. Court still has power to prevent excessive charges.- OAKLEY, Ch. J., says: "We do not think that the court is deprived of the power of looking into arrangements between attorney and client." In this case there was a gross overcharge, the clients being very illiterate persons. A reference was ordered, and the attorney was obliged to refund a considerable portion of the money retained, or stand committed for contempt. Barry v. Whitney, 3 Sandf. 696; S. C. 1 Code R. N. S. 101. n. Attorney cannot set up illegality of collection.-Where an action is com menced against an attorney to compel him to pay over money collected, he cannot set up any illegality in the transaction between the client and the person from whom the money was collected, in order to protect himself (the attorney) from liability. Fogerty v. Jordan, 2 Rob. 319. o. Action on trespass on land. — This section of the Code has not repealed 2 R. S. 613, § 3, relative to costs in an actior for trespass on lands. Utter v. Gifford, 25 How. 289. See, also, Jermain v. Booth, Denio, 639. p. Old rule as to costs superseded A new rule, as regards costs, has been estab lished by the Code of Procedure, and all former rules upon that subject have been superseded by it. Montgomery County Bank v. Albany City Bank, 7 N. Y. (3 Seld.), 465. q. Costs on appeal.-The provisions of the Code regulating costs, apply to appeals as well as to original actions. Ib. 8. in courts of U. S.-The question of costs in the federal courts, is not affected by this section. 1 Blatchford C. C. R. 647, 650. t. Surrogate's court, rule as regards costs in.-In all cases, where the surrogate is authorized to award costs, he must tax the same at the rates allowed for similar services in the court of common pleas in the year 1837 (3 R. S. 5th ed. 367, § 23). Western v. Romaine, 1 Bradf. 37; Willcox v. Smith, 26 Barb. 316. He has no authority to make an arbitrary allowance to counsel in lieu thereof. Burtis v. Dodge, 1 Barb. Ch. 77, 91; Willcox v. Smith, 26 Barb. 316. Previous to the Revised Statutes, the surrogate could not award costs in any case. Schultz v. Pulver, 3 Paige, 182; Reid v. Vanderheyden, 5 Cow. |