*By the Court,
Cowen, J.I do not think the power of this court [ *111 ] to fix the amount of costs by ordering a re-taxation, would be gone even by a voluntary settlement of a cause, payment of the money and actual discontinuance ; much less, I should suppose, where it is merely constructive, as by a submission to arbitration. The court may direct a re-taxation of costs, irrespective of the actual pendency of a suit in which the taxation is to opeiate, and often do so as between attorney and client. The right and duty to do this, arises from the general authority of the court over attorneys as its officers : one branch of which is the power to prevent improper exactions either from the opposite party or their own clients. Wadsworth v. Allen, 1 Chit. R. 186. Starr v. Vanderheyden, 9 Johns. R. 253. Vid. also Kellogg v. Potter, 11 Wendell, 170. The plaintiff, therefore, relying on the taxation of the commissioner as evidence for himself, was bound to take it with the deductions made by the rules on the motion to retax. Whether that deduction, which was made as between party and party, should in all cases conclude as between attorney and client is another question. The attorney may, in his over doing, act in good faith, on a real doubt whether it be not necessary ; and though his services be reduced as to the opposite party, may possibly, notwithstanding, recover against his client for the whole ; but hard, ly, I should think, in a case like this, where he makes the very bills cut down by the court his bill of particulars and his evidence on the trial. The judicial act on which he sought to recover, had been reviewed on appeal and reversed. Independent of that, I apprehend, the rule in a matter of this kind, would be about the same between attorney and client as between party and party. In both cases, the extent of taxation would depend on the intent, to be collected from the utility or the obvious inutility of the act. Vid. Willink v. Reekle, 11 Wendell, 84. Be all this as it may, however, the judge thought the bills open to the question of good faith, and put the distinction to the jury, with instructions to act upon it, and allow them in full, should they conclude that the plaintiff performed this excess of labor under a belief that it was necessary. He explained to *them [ *112 ] the law and the practice which governs in the use of the special and general counts on promissory notes, thus placing before them, as far as possible, the materials for forming a correct conclusion. The plaintiff cannot complain that the legal ground of his claim has been improperly narrowed. The jury found that so much writing was not performed in good faith. *112It struck them, I suppose, as it certainly did me, when I ordered the re-taxation, that all the folios beyond the money counts were drawn out with the single purpose of swelling the costs against the bank.
It is now said that special counts were necessary to indicate the claim of 10 per cent, by way of damages, which this bank is, by its charter, Sess. L. of 1831, p. 512, § 31, made liable to pay after demand; at least that this view raises a doubt on the mode of declaring, which would warrant the precaution taken. It seems, that in fact, the counts in question were framed so as specially to claim the damages. Thus, a considerable addition was made to each count, and the aggregate folio increased a good deal. This is the first time I have heard of that argument. It was not mentioned on the motion to re-tax; nor could it have changed the result. It must have naturally occurred to any legal mind, on considering the words of the statute with no more than ordinary care, that it was not intended to affect the form of declaring ; but that the claim to the 10 per cent, would be raised by evidence under the ordinary counts, as in common cases. It was the direct consequence of this bank refusing payment, as much so, as'if each note had expressed the obligation. It followed, the same as interest at 7 per cent, would do on a common promissory note. It was the law of the contract; and a declaration need never claim damages specially, which are a direct consequence of the case made out by evidence. This is a familiar rule of pleading.
In the most favorable view, it cannot add to the argument of bona fides, that this mere legal effect or claim of 10 per cent, is added to each special count, with great detail, instead of being appended, once for all, at the conclusion of the whole.
New trial denied.