
    
      ELLERY vs. GOUVERNEUR & AL.
    
    The fees of counsel, apppointed to an absent debtor, must be fixed by the Court.
   Derbigny, J.

delivered the opinion of the Court. In a suit by attacnment brought by the appellees, the present defendants, against Dawson ^ Lew¡s? the appellant, the present plaintiff, was appointed bv the Court'counsel for the absent de- , * . ⅝ # iendants. To obtain a compensation for his services he instituted the present action, praying that he may be paid, out of the proceeds of the property attached.

East. District.

May 1815.

Th e r e is no doubt that in cases of attachment, where the defendant is absent, the property attached must be answerable for the payment of all costs and ex pences which are necessarily incurred in the prosecution of the suit, and that the plaintiff is to receive only the nett proceeds of the property sold, after payment of such costs and ex-pences. A compensation to the counsel of the absent defendant, for his services, is certainly part of these necessary expences, and ought to be paid him out of the proceeds of the property. But in order to be entitled to such payment, the compensation must have been fixed according to law, that is to say, in the same suit and by the Judge. Aut. accord, lib. 2, tit. 23, art. 2.

Here the services, instead of being taxed by the Judge, are valued by the counsel himself, and agreed to by the attaching creditor who has no interest to dispute them ; and they are made the ground of a separate action, while they ought to have been included in the costs of the original suit. Such an action' cannot be maintained.

It is adjudged and decreed that the judgment of the District Court be affirmed with costs.  