In the opinion expressed by the court, in the case, I fully concur, with the exception of that part relating to damages. The judge, I presume, followed a practice ( which, it is said, has prevailed, to some extent, of allowing the jury, in trespass and other actions sounding in damages, to include, in their assessment of damages, the expenses of the plaintiff beyond his taxable costs. ^SThat doctrine has never before received the sanction of this court: and, as it is believed, has not uniformly been recognised on the circuit. If it is unsound in principle, it is within the power of this court to put it right, as has been done by other courts, in relation to this precise question, and by this and other courts, in like cases. Barnard v. Poor, 21 Pick. 382. Lincoln v. The Saratoga and Schenectady Rail-Road Co. 23 Wend. 425. Dean v. Mason, 4 Conn. Rep. 428. Parkinson v. Lee, 2 East, 322. It has established no rule of property, by the change of which any title can be shaken.
Now, it is very clear, that however groundless may have been the plaintiff’s suit, and however great the defendant’s expenses, the latter, if he prevailed, could recover no more than his taxable costs. Why then, if the plaintiff prevails, shall he be allowed to recover more on account of his expenses ? And why apply a different rule to one party, from what is applied to the other ? Surely, it can be no worse to make a groundless defence, than to prosecute a groundless suit. Besides, it must be conceded, that such expenses can be included undei- the head of damages, only in few cases. In all others, the plaintiff must look for remuneration, on account of them, to his costs. 11)
*241The true rule upon this subject, is, for the plaintiff, in all . i , A , • , , 1 c . cases, to look, not to ms damages, but to his costs, for his penses in prosecuting the suit. If the costs are adequate, he ought not to recover more : if inadequate, the remedy is with the legislature, it is for them to authorise the allowance of greater, and not for the court or jury. Besides, if the jury have a right to assess damages, on account of the expenses of a party in carrying on his suit, they ought to be informed what those expenses actually were. The proper evidence ought to be furnished of the amount. Such testimony, upon such a subject, and for such a purpose, it is believed, was never heard in a court of justice. No case can be found, sustaining such a course.
4 ||But this doctrine is not only unsupported by authority, but directly against it. This question recently came before the supreme court of Massachusetts. They say, that “ it is now well settled, that even in an action of trespass, or other action sounding in damages, the counsel fees and other expenses in prosecuting the suit, not included in the taxed costs, cannot be taken into consideration, in assessing damages ; and if such costs were included by a jury, it would be irregular and erroneous.” Barnard v. Poor, 21 Pick. 382. The question has still more recently been brought for consideration before the supreme court of the state of New-York. They fully re-cognise the doctrine laid down in the case of Barnard v. Poor, and say, that the point there adjudged, they consider founded on principle. Lincoln v. Saratoga and Schenectady Railroad Co. 23 Wend. 425. 435.
|¾ Believing, as I do, that the instruction given to the jury, that in estimating damages, they had a right to make good to the plaintiff his trouble and expenses in prosecuting his action, is unsound in principle, against the authorities, and opposed by all the analogies of our law, I cannot give it my approbation.
New trial not to be granted.