No. 54

#### Isaac Mackey and Ephraim S. Johnson, plaintiffs in error, *vs.*Allen Blake, defendant in error.

[1.] Whore an attorney shall institute a suit in any of the Courts of the State, in behalf of a non-rosiclont plaintiff, to which a set-off is pleaded, and a judgment rendered for the defendant, tho attorney shall bo liable fen the cost.

Motion, in Hall Superior Court. Decided by Judge Jackson, September Term, 1853.

Ephraim S. Johnson, an attorney at law, brought suit in favor of Isaac Mackey, a non-resident plaintiff, against Allen Blake, in Hall Superior- Court. Tho defendant filed a plea of set-off, larger than the plaintiff’s claim, and recovered a judgment for the overplus, and issued a *fi. fa.*thereon. The present motion was to enter up judgment against tho attorney, Johnson, for the costs, under the Statute making attorneys liable for the costs, in cases where the plaintiff resides out of the county. Johnson resisted tho motion, and on its being granted by the Court, sued out a writ of error to the decision thereon.

McDonald, for plaintiff in error.

Hull, for defendant in error.

*By the Court.*

Lumpkin, J.

delivering the opinion.

[1.] The decision of this case, depends upon the construction to bo put upon the first section of the Act of 1812, *(Cobb’s Digest,*505,) which was re-enacted and declared to be in full force, by the Act of 1839. *(Ib.*507.) This section declares, “ that where any attorney shall institute a suit, in any of the Courts of this State, for and in behalf of any person or peiv sons, who resides or reside out of this State, or out of the county in which the defendant or defendants may reside, and in which such suit may be tried, such attorney shall' be liable to> *403pay all costs, in case such suit shall, be dismissed, or the plaintiff or plaintiffs be cast in/ his, her or their suit; and it shall be lawful for the Clerk of said Court, to issue execution against •said attorney or attorneys, for the amount of the cost of said suit”.

Can tho non-resident plaintiff, when, under a plea of set-off, the defendant gets a judgment against him, for a balance, be said to bo “ cast in his suit” ?

It may be contended, with some plausibility, at least, that where the plaintiff sustains his cause 'of action, and is *cast,*as in the present instance, by reason only of the set-off of the defendant, which is in the nature of a cross-action, that the attorney should not bo hold liable; that he is without fault, not having misjudged, as tho result show’s, the plaintiff’s rights.

Rut even if this were sq, it would not protect the counsel in the present case. The plaintiff’s writ, ivas to recover two items of indebtedness—one for §50 cash loaned, and the other §14 for 9 barrels of corn. The defendant pleaded that tho first item ivas loaned, to be bet on cards; and consequently, was not collectable under our law. He also filed a set-off for §23. The Jury sustained his defence, as to the §50, and gave him a verdict for tho excess of his account, over the second item of tho plaintiffs. It must be admitted, therefore, under any view of the Act, that the plaintiff was *cast,*as to the §50; and for tho other demand, he might and should have sued in the Justice’s Court. And had no set-off been filed, he could only have obtained judgment for the §14, which would have drawn after it no more costs than is allowed in the Justice's Court; and the attorney would have been responsible to the officers of Court, for the difference.

But, we apprehend, we shall best subserve the intention of the Legislature, by holding that, in contemplation of the Act of'1812, the plaintiff is *cast,*whenever a judgment is rendered against him, no matter from what cause. So far as the officers of the Court are concerned, it can certainly make no difference, whether the plaintiff be cast for want of a legal cause ■of action?; proof to sustain it; the neglect of counsel, or be*404cause his claim has been overcome by that of the defendant. In any and all these cases, the plaintiff is equally liable for costs; and he is beyond the reach of those whom the Statute intended to secure.

The object of all of our legislation, from the earliest Judicial history of the State, was manifestly designed to protect the officers of Court, in the collection^ of their costs. And this is right. The service they render is compulsory; it should not be gratuitous. And where the remuneration cannot be had out of the party, it would seem to be reasonable, that it should be paid by the attorney. Resides, the attorney can always exact indemnity from his client, against personal liability, before instituting the suit, so that he cannot suffer, except by his own neglect. In point of fact, we know, however, by bitter experience, as well as observation, that they do lose a large amount in this way, which is never re-imbursed. If they are injured by the direct effect of this decision, it is comforting to them, that it will afford them a proper pretext tO'be more exacting in 'future, in demanding security in the out-sot, against ultimate responsibilty. For their benefit, we will cheerfully take upon ourselves the blame of making it their duty to do so.

Judgment affirmed.