1. Where objection is made in this Court that a court below
allowed a clerk and marshal there excessive fees, but the record,
while showing what fees were allowed, furnishes no means of
ascertaining what services were rendered by the clerk or marshal,
nor any means of determining whether the fees were or were not in
excess of what is authorized by law, the objection cannot be
sustained.
2. The plaintiff's fees to counsel on a suit for damages against
a Treasury agent for illegally seizing and retaining his property
disallowed, though the seizure was adjudged to have been illegal
and damages were given accordingly.
Error to the circuit court for the District of Louisiana, in
which court Tweed sued Flanders, deputy general agent of the
Treasury Department of the United States, to recover damages caused
by in alleged unlawful seizure and detention of certain cotton of
his, Tweed's. Judgment being given for the plaintiff, the Treasury
agent appealed.
Error to the Circuit Court for the District of Louisiana, in
which court Tweed sued Flanders, deputy general agent of the
Treasury Department of the United States to recover damages caused
by an alleged unlawful seizure and detention of certain cotton of
his, Tweed's. Judgment being given for the plaintiff the Treasury
agent appealed.
MR. JUSTICE CLIFFORD stated the case, and delivered the opinion
of the Court.
Tweed claims that he was the owner of four hundred and
ninety-five bales of cotton; that the defendant, on the sixth of
March, 1866, unlawfully seized and took the same into his
possession, and that he unlawfully detained the cotton until the
fifteenth of May in the same year, when he, the plaintiff, obtained
possession of the cotton by virtue of two writs of sequestration
which he instituted in the same court for that purpose, and that he
expressly reserved the right to recover damages for the seizure and
detention of the cotton in his petition in each of the
sequestration suits; that the cotton declined in value to the
amount of thirty thousand dollars during the period the possession
of the same was unlawfully withheld from the possession of the
plaintiff by the
Page 82 U. S. 451
defendant; that in consequence of said unlawful detention of the
cotton, the plaintiff was compelled to pay and did pay interest to
the amount of one hundred and sixty dollars and insurance to the
amount of two hundred dollars, and storage to the amount of one
thousand dollars; that he was compelled to institute the two suits
of sequestration to recover the possession of the cotton, and that
he was compelled to pay and did pay counsel fees, clerk's fees, and
marshal's fees to the further amount of seven thousand dollars. He
also charges that the defendant, during the period he wrongfully
withheld the possession of the cotton from the plaintiff, sent
fifty bales of the same to be rebaled, whereby the cotton in those
bales was diminished in value to the amount of one thousand
dollars, for all which he claims damages in the sum of thirty-nine
thousand three hundred and sixty dollars.
Service was made and the defendant appeared and filed an answer
in which, among other things, he alleged that he was a deputy
general agent of the Treasury Department; that the cotton, before
and at the time the writs of sequestration were issued, was in his
custody and control as such officer, and that it was held by him as
an official act in administering the laws of Congress in relation
to the states in insurrection and rebellion; that the cotton, when
the plaintiff caused the same to be seized, sequestered, and taken
into the custody of the officer of the court was, by virtue of his
possession under color of those laws, in the due and actual
custody, control, and possession of the United States and that the
issuing and executing the writs of sequestration and taking the
cotton into possession by the officer under the same were in all
respects acts of lawless and unjustifiable trespass and
violence.
Evidence was introduced to the jury, and the jury, under the
instructions of the court, returned their verdict in favor of the
plaintiff, and the defendant excepted and removed the cause into
this Court.
Exceptions were taken by the defendant to the instructions given
by the court to the jury, but the counsel for the United States who
appear for the defendant submit the exceptions
Page 82 U. S. 452
without argument. None of the questions presented in the
exceptions are assigned for error, and in view of the
circumstances, the Court does not deem it necessary to reexamine
those questions.
Nothing remains for the consideration of the Court except the
error assigned founded upon the verdict of the jury, from which it
appears that they found damages in favor of the plaintiff, as
follows:
For decline in cotton . . . . . . . . . $ 6,994.35
" insurance premiums. . . . . . . . . 160.00
" lawyer's fees . . . . . . . . . . . 6,000.00
" storage . . . . . . . . . . . . . . 1,000.00
" clerk's and marshal's fee . . . . . 1,126.13
---------
$15,280.48
Objection is made by the defendant to the allowance for fees of
counsel and to the allowance for the fees of the clerk and marshal,
but the record furnishes no means of ascertaining what services
were rendered by the clerk or marshal, nor any means of determining
whether the charges allowed were or were not in excess of what is
authorized by law. Viewed in the light of those suggestions, it is
quite evident that the objection to the allowance for fees to the
clerk and marshal cannot be sustained.
Cases also may be found in which it is held that counsel fees,
under certain circumstances, are a proper matter for allowance in
cases not different in principle from the one before the Court, but
the rule is now well settled the other way. Fees and costs allowed
to officers therein named are now regulated by the act of Congress
passed for that purpose, which provides in its first section that,
in lieu of the compensation previously allowed by law to attorneys,
solicitors, proctors, district attorneys, clerks, marshals,
witnesses, jurors, commissioners, and printers, the following and
no other compensation shall be allowed. [
Footnote 1] Attorneys, solicitors, and proctors
Page 82 U. S. 453
may charge their clients reasonably for their services in
addition to the taxable costs, but nothing can be taxed or
recovered as cost against the opposite party, as an incident to the
judgment, for their services except the costs and fees therein
described and enumerated. They may tax a docket fee of twenty
dollars in a trial before a jury, but they are restricted to a
charge of ten dollars in cases at law, where judgment is rendered
without a jury. [
Footnote 2]
Perhaps the leading case upon the subject is that of
Day v.
Woodworth, [
Footnote 3]
which was an action of trespass
quare clausum fregit for
pulling down a mill dam. In the course of the trial, the plaintiff
requested the presiding justice to instruct the jury that they
might allow counsel fees as damages, but the justice refused so to
instruct the jury, and the plaintiff excepted and the cause was
removed into this Court, where it was held that neither the common
law nor the statute law had invested the jury with any such power
or privilege. It has sometimes been exercised by the courts, said
Mr. Justice Grier, but its results have not been such as to
recommend it for general adoption either by courts or legislatures.
[
Footnote 4]
Suggestion may be made that the matter is not open to
reexamination, as the verdict is not a special one in form, but
further discussion of that topic at this time is unnecessary, as it
was fully considered in a prior case decided at this term.
Judgment reversed and modified by disallowing the sum of six
thousand dollars included in the verdict for counsel fees, and the
cause remanded with directions to render judgment in favor of the
plaintiff for the residue of the verdict.
[
Footnote 1]
10 Stat. at Large 161.
[
Footnote 2]
The
Baltimore, 8 Wall. 392.
[
Footnote 3]
54 U. S. 13 How.
363.
[
Footnote 4]
Teese v.
Huntingdon, 23 How. 2.