2 Mason C.C. 119 | U.S. Circuit Court for the District of Massachusetts | 1820
In one of the earliest cases which came before me, after my advancement to the bench, this very question arose, and at the trial I decided that counsel fees and other necessary expenses, not included in the taxable costs, were proper to be allowed by the jury, if they saw fit, as part of the “actual damage” of the plaintiff, within the contemplation of the patent act. But upon a motion for a new tidal, the circuit court felt itself constrained upon the authority of Arcambel v. Wiseman, 3 Dall. [3 U. S.] 306, very much against its own judgment, to declare the-contrary doctrine. Whittemore v. Cutter [Case No. 17,600]. Since that period, I have-not been able upon inquiry, to learn that any of my brethren hold to so rigid a rule; or have felt themselves bound to limit the discretion of the jury, as to an allowance of items of this nature. Nor can I now deem Arcambel v. Wiseman, an authority on which one ought to repose, in a case of this sort, without very serious doubts. The case appears to have been decided on this point, without much argument, and is very , imperfectly reported. I have examined the original record. It was a libel filed by the Spanish consul for restitution of a Spanish vessel, captured by an armed French vessel on the high seas. The district court dismissed the libel, and awarded damages for the delay, &c. to the captors. The circuit court affirmed the decree, and it was after-wards on error affirmed by the supreme court; but a charge of $1,600, for counsel fees, appearing on the record to have been allowed as part of the damages, the supreme court disallowed this item, declaring the general practice of the United States to be in opposition to it, and if that practice-were not strictly correct in principle, it ought to be respected until changed by statute. It is to be observed, that this was an admiralty or prize suit. In cases of marine torts, or illegal captures, it is far from being uncommon in the admiralty to allow costs and expences, and to mulct the offending parties, even in exemplary damages, where the nature of the case requires it. In prize causes it is the usual course to allow the captors their costs and expenses upon restitution being decreed, where the original capture is justifiable, or farther proof is required. It can hardly be presumed, that the court alluded to cases of this nature— to-cases of admiralty and prize jurisdiction, for it is scarcely possible, that any general uniform practice had been adopted in the United States, at so early a period; and if it had been, it must have been founded on a want of accurate knowledge of the principles and doctrines of courts of admiralty on this subject. Courts of admiralty allow such items, not technically as costs, but upon the same principles, as they are often allowed damages in cases of torts, by courts of- common law, as a recompense for injuries sustained, as exemplary damages, or as a remuneration for expences incurred, or losses sustained, by the misconduct of the other party. The court in the remarks imputed to them by the reporter, must have referred only to the general practice in the courts of common law in the United States, not to tax
A motion was afterwards made for a new trial, for misdirection on this point, which was refused by the court, and judgment given for the plaintiff for the treble damages.