In debt, covenant and assumpsit damages are recovered, but counsel fees are never included. So in equity cases, where there is no injunction bond, only the taxable costs are allowed to the complainants. The same rule is applied to the defendant, however unjust the litigation on the other side, and however large the expensa litis to which he may have been subjected. The parties in this respect are upon a footing of equality. There is no fixed standard by which the honorarium can be measured.
Some counsel demand much more than others.
Some clients are willing to pay more than others. More counsel may be employed than are necessary. When both client and counsel know that fees are to be paid by the other party there is danger of abuse. A reference to a master, or an issue to a jury, might be necessary to ascertain the proper amount, and this grafted litigation might possibly be more animated and protracted than that in the original cause. Since the enunciation of this doctrine, the Supreme Court of the United States has had occasion to reverse several decisions of State Courts where attorneys' fees for services in dissolving writs of injunction and attachment were allowed, the writs having issued out of Federal courts and actions for damages brought in the State Courts.