The Margaret v. The Connestoga

16 F. Cas. 716, 2 Wall. Jr. 116, 1851 U.S. App. LEXIS 443

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: November 3, 1851
• Status: Published

Opinion

GRIER, Circuit Justice.

When the judgment of an inferior court is affirmed on error or appeal, it is of course, that the defendant in error has judgment for costs. But when the judgment of the court below is reversed on writ of error or appeal, costs are not of course. It is said that as the appel-lee is not in fault for the judgment below, he should not pay the costs on appeal; but each party should be left to pay his own costs. Formerly, as there were no damages given on a writ of error, there could be no costs either at common law or by statute of Gloucester. The statute of 3 Hen. VII., c. 10, first gave costs where a judgment was affirmed on a writ of error. That of 4 Anne, c. 16, § 25, gave costs where a writ of error was quashed, but no statute gave them in case of a reversal. In equity and in admiralty there seems to be no other rule than the discretion of the court, as to costs, on appeal. So far as any rule on the subject has been announced by this court, it is only, that we would not allow costs on appeal where new evidence has been introduced above, which might have caused a different judgment if it had been offered to the court below. Carrigan v. The Charles Pitman [Case No. 2,444]. But I believe it has been our usual practice to give the party his costs here, who obtains the judgment of this court, with the above exception only. It is true the defendant is not in default for the judgment of the court below. And to this it may be answered, neither is the plaintiff.

The plaintiff who recovers a debt, or damages for an injury done to him, has a right to recover also the cost incurred in obtaining his judgment. The costs on appeal would seem to form a part of these, as justly as any other, unless in the excepted cases I have mentioned, where he failed below by not producing sufficient evidence, which was afterwards produced on appeal. In courts of law, at the present time, I believe in most instances, costs are given on reversal of a judgment. And I think also as a general rule, that where a plaintiff is forced to appeal in order to recover his debt or damages, and does not succeed in so doing, on his appeal he recovers all his costs up to the date of his decree or judgment, unless some special reason be shown to the contrary.

But while this rule applies to actual taxable costs I know of no instance where wo have added a large sum for supposed counsel fees. I know that it was decided, in the case cited at the bar (The Appollon, 9 Wheat. [22 U. S.] 362), that courts of admiralty have a wide discretion to allow expenses of this nature, not only in prize, but in instance cases. The allowance is there said to rest in the sound discretion of the court. I must confess my decided repugnance to the exercise of discretionary power over men’s property. This principle has been introduced from civil' law courts. It partakes rather of the hall of the cadi, than of the judgment seat of the court I have already refused to follow the practice of the late Judge Story in patent cases, and allow necessary counsel fees as part of actual damages. Stimpson v. The Railroads [Case No. 13,456]. “Sound discretion” is no doubt an excellent phrase in the abstract, but the exercise of it over men’s property, liberty or life is sometimes called a tyrannical, not a judicial power. “Discretion” is admitted to be dangerous; but “sound discretion” is claimed as a different thing. Who is to judge of the soundness but the court? And by what is it to judge when it abandons precedent and principle? “Sound discretion” is discretion as settled by rules. Otherwise it is sound only when you decide as the party seeking the decision wants. And hence in practice it would come to mean the notion, whim or caprice of the judge who exercises it. In prize cases, the money is in court. Like plunder, it belongs to no one till it is divided, and it may be no more than right that some crumbs should fall to the share of the learned doctors and proctors who have the trouble of its distribution. I confess my decided aversion to the exercise of an arbitrary power over the property in the pockets or possession of parties in common cases. If I were to judge of the reward merited by the learned counsel on either side of this ease, I should say that their labours on behalf of their respective clients, were worthy of ample remuneration. For the case was well prepared, and well argued on both sides; and I think it due to the younger gentlemen, who have for the first time made their appearance in this court (Mr. H. Wharton and Mr. R. P. Kane), to say, that they have defended the case of their clients, with a zeal and ability which deserved, if it did not obtain success, and which are certain omens of their future success and eminence in their honourable profession.

The defendants in this case have acted in good faith in making this defense; and, I have no doubt, consider themselves wronged by the judgment of this court. In all collision cases, both sides are sure they are not in fault, and they swear to it, believing it to be true. In deciding these cases, the testimony is always contradictory; much of it, though not intentionally false, is not true. The truth has to be guessed out by the court by a careful comparison of the admissions and contradictions of the witnesses. The last guess may not be the right one, but he in whose favour it is, may at least be said to have good fortune, if not justice on his side.

Now I will not say that there may not be aggravated cases of appeal when the judgment below is affirmed, that this court, in the exercise of this permitted but disliked exercise of discretion, may add, by way of penalty, to the taxable costs, a sum for counsel fees in this court. But where the defendants, as in this case, had the judgment of the district court in their favour, where there has been no attempt on their part to oppress the plaintiff by protracted litigation, we do not think that a case is presented, where this dangerous discretion of adding two hundred dollars to the damages should be exercised. If the plaintiffs have fortunately recovered in this doubtful contest, they must pay their counsel, as in common law cases, out of the damages recovered, and be thankful for the balance. But for the very able and valuable services of their counsel, they would not probably have recovered anything. It is true, that, civil law tribunals by the exercise of this sound discretion, or summum jus propose to make the complainant whole for his entire loss; but this is not always possible, and we should be careful, lest the exercise of this discretion may be to the opposite party .summa injuria.

The report of the clerk is therefore confirmed, without the addition óf the two hundred dollars demanded as counsel fees.