By the Court, I am inclined to think there is enough collectable from the letters which passed between the plaintiffs and the defendant, connected with the other evidence, to warrant the referees in allowing the charge for the map; and they might also infer from the letters, that the defendant was originally willing to pay the counsel fees contained in the account. I do not see any force in the objection that the charge for the map was not allowable in its own nature.
The charge for the counsel fees is resisted as inadmissible, in its full ex-’ *60tent, on the ground that, at common law, no such compensation was allowable ; and that the statute gives only a specific sum, viz. $3,75, for arguing every cause. 2 R. S. 518. It is added, that this provision renders it especially improper that counsel should recover, as Mr. Stevens finally did here, on a quantum meruit. What I have already said of an inference from the letters that Adams consented to pay these counsel fees, [ *61 ] if correct, *obviates the objection that the referees must have gone on a quantum meruit; though I admit the general objection to be still fatal, if the statute was intended to operate as between counsel and client.
The clauses which prescribe the fees of counsel in the court of errors allow “ for arguing every cause, or attending for such .argument pursuant to notice, $3,75.” But it is added, “the foregoing fee shall be allowed only to one counsel on each side, who shall have been actually employed and rendered‘the service charged.” 2 R. S. 518, 2d ed. § 4. Then in the same volume, p. 542, § 4, is a provision that no officer, &c. or other person, to whom any fees or compensation shall be allowed by law, for any service, shall take or receive any other or greater fee, or reward for such service, but such as is or shall be allowed by the laws of this state. Section seven, on the same page, declares that a violation of the fifth section shall be deemed a misdemeanor. Thus, if the statute prescribing a counsel fee was intended to govern as between a counsellor and his client, not only is Mr. Stevens forbidden to recover, but it would be criminal for him to receive the sum insisted on before the referees, whether the defendant had or had not promised to pay it. The provisions cited are parts of chapter ten, of part third of the revised- statutes. This chapter contains various provisions in respect to costs and fees, sometimes as between party and party, and sometimes both as between the person employed and the person who retains him, and as between party and party. In general the fee bill and all the provisons of chapter ten in respect to fees, are of the latter character, though I apprehend that several of them were never so intended. Retainers to counsel, and their fees on argument especially, wherever they occur in that chapter, (and similar provisions in like words and in fike connection have long made part of our statutes,) have always been understood, both by the bench and bar, as intended of taxation merely between party and party. ' Otherwise the provisions, when taken in their full extent, would seem to be absurd.
Did any one ever suppose, for instance, that, where a party choos- [ *62 ] es to employ two or more *gentlemen as counsel in the court of errors, only one of them could recover any thing of him ? and, if only one, which is the fortunate man who is to get his $3,75 ? for the statute says, that only one counsel on the side which has thus employed two or more, shall be allowed that fee. And how, in such a ease, is the prohibi*62tion against, and the penalty mentioned in the subsequent clauses, for receiving fees not allowed by law, to be applied ? There are various other similar provisions in the fee bill against allowing more than a fee to one person. In the court of errors, for instance, a retaining fee of $3,75 is to be allowed to one counsel only. Is it possible the statute means to exempt the client from paying a second counsellor retained, by him with the first, any fee whatever ? I do not recur to other like provisions. To my mind the legislature could only have intended them to apply when the bill came to be taxed against the unfortunate adversary. The evil was, that costs might be recovered to an oppressive amount, if the prevailing party were allowed to multiply taxable counsel fees, and carry them into the judgment. This accounts for cutting down the fee to so small a sum, limiting it to one counsel, and that counsel actually employed. How absurd to suppose that the latter could have been intended to protect the client; as if it were necessary to say, by statute, that counsel shall not recover a fee when he has never been retained.
I need not cite authorities to show that general words in a statute ought to be so limited in their operation that, while they work the full effect intended by the law makers, they ought not to be so construed as to go farther, especially where, if taken in a literal sense, they will work a wrong, or run into an absurdity. The statute in question is completely operative, though it be applied only as between party and party. Costs are then said to be in nature of a penalty ; and it has always been a conspicuous part of legal policy, not only to construe statutes giving costs against the failing party with great strictness, but to limit the amount by an extent tariff. No one can doubt that this was the primary object in limiting the argument fees of counsel. It seems to me there is very little difficulty, on the face of such *provisions, in saying that, though the words are general [ *63 ] and may, in some respects, (certainly they cannot in all,) be operative as between counsel and client, yet such a consequence was never, to any extent, intended by the legislature.
It is true the clauses prohibiting all persons, under a penalty, from receiving more than the fee bill allows, are also very general; and,; in their broadest extent, comprehend retaining and argument fees to counsel, as well as the fees between attorney and client, solicitor and client, &c. Yet when we see the legislature must have intended to make the fees in question an exception as between counsel and client, it follows that the general words of the latter clauses must so far fail for want of subject matter.
The notion that counsel fees are merely honorary, like a barrister’s, sergeant’s and physician’s fees in England, has never been recognized in this state. On the contrary, I understand there has been a case, perhaps sev*63eral cases, in this court, wherein counsel have been allowed to recover of their clients argument fees on a quantum meruit.
The motion to set aside the report of the referees is denied.