delivered the opinion of the court.

The plaintiff in error was plaintiff below in an action of trespass, charging the defendants with tearing down and destroying his mill-dam. The defendants pleaded in justifichtion that the Berkshire Woollen Company owned mills above the dam of plaintiff, who illegally erected and maintained the same, so as to injure the mills aboVe; that by direction of said company, and as their agents and servants, they did- enter plaintiff’s close, and did break down and demolish so much of the plaintiff’s dam as was necessary to remove the nuisance and injury to the mills above, and no more, and. as they lawfully might. To this plea the plaintiff replied de injuria, &e.

[*370] On the trial of this issue, the defendants “ claimed the right to begin and offer their evidence first, and open and close the argument.. The plaintiff claimed the same right. The court ruled in favor of the defendants, to which the plaintiff excepted.’* This ruling of the court is now alleged as error.

Our attention has been pointed to numerous decisions of English and American courts on this subject, which we think it unnecessary to notice more particularly, than to state, that the question whether a defendant in trespass who pleads a plea in justification only, has a right to begin and conclude, has been-differently decided in different courts. It is a question of practice only, and depends on the peculiar rules of practice which the court may adopt. The English courts have .regretted that. an objection to the ruling of the court at nisi prius on this question should ever have been permitted to be received as a ground for a new trial. But although a court may sometimes grant a hew trial where the judge has not accorded to a party certain rights to which,-by the rules of practice of the court, he may be justly entitled, we are of opinion that the ruling of the court below on such a point is not the proper subject of a bill of exceptions or a writ of error. A question as to the order in which counsel shall address the jury does not affect the merits of the controversy. As a matter of practice, the Circuit Court of Massachusetts had a right to makes its own rules. The record does not show that the rule of the court is different from their judgment oh this occasion. So that the plaintiff has failed to. show any error in the decision, assuming it to be a proper subject of exception.

The great question, on the trial of this case, appears to have been whether the plaintiff’s dam was higher than he had a right to maintain it, and if so, whether the defendants had torn down more of it, or made it lower than they had a right to do.

The plaintiff’s counsel requested the court to instruct the jury that “ they might allow counsel-fees, &c., if there was any excess in taking down more of the dam than was justifiable, and give as a reason that the. defendants thereby became trespassers ab initio.”

The court instructed the jury “ that if they should find for the plaintiff on the first ground, viz., that the defendants had taken down more of the dam than was necessary to relieve the mills above, unless such excess was wanton and malicious, then the jury would- allow in damages the cost of replacing such excess, and compensation for any delay or damage occasioned by such excess, but not any thing for counsel-fees or extra compensation to engineers.?’

[*371] This instruction of the court is ex'cepted to, oil two grounds. First, because “ this being an action of trespass, the plaintiff was not limited to actual damages proved,” and secondly, that the jury, under the conditions stated in the charge, should have been instructed to include in their verdict for the plaintiff, not only the actual damages suffered, but his counsel-fees and other expenses incurred in prosecuting his suit.

It is a well-established principle of the common law, that in actions of trespass and all actions on the case for tort's, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By-the common as well as by statute law, men- are often punished for aggravated misconduct or lawless acts, by means pf a civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured. In many civil actions, such as libel, slander, seduction, &c., thé. wrong done to-the plaintiff is incapable of being measured by a money standard; and-the damages assessed depend on the circumstances, showing the degree of moral turpitude or atrocity of the defendant’s conduct, and may properly be termed exemplary or vindictive rather than compensatory.

. In actions of trespass, where the injury has been wanton and malicious, or gross and outrageous, courts perrtñt juries to add to the measured compensation of the plaintiff which he would have .been entitled to recover, had the injury been inflicted without design or intention, something farther by way of punishment or example, which has sometimes been called “ smart money.” This. has been always left to the discretion of.the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each casé. It must be evident, also, that as it depends upon the degree of malice, wantonness, oppression, or outrage of. the defendant’s conduct, the punishment of his delinquency cannot be measured by the expenses of the plaintiff in prosecuting his suit. It is true that damages, assessed by way of example, may thus indirectly compensate the plaintiff for money expended in counsel-fees; but the amount of these fees cannot be taken as the measure of punishment or a necessary element in its infliction.

This doctrine about the right of the jury to include in their verdict; in certain cases, a sum sufficient to indemnify the plain[*372] tiff for coúnsel-fees and other real or supposed expenses over and above taxed costs, seems to have been borrowed from the civil law and the practice of .the courts of admiralty.' At first, by the common law, no costs were awarded, to either party, eo nomine. If the plaintiff failed to recover he was amerced pro falso clamore. If he recovered judgment, the' defendant was ira misericordia for his unjust detention of the plaintiff’s debt, and was not. therefore punished-with the expensa litis under that title. But this being considered a great hardship, the statute of Gloucester, (6 Ed. 1, c. 1,) was passed, which gave costs in all cases when .the plaintiff recovered damages. This was the origin of costs de incremento; for when the damages were found by the jury, the judges -held themselves obliged to tax the moderate fees of counsel- and attorneys that attended the cause. See Bac. Abr. tit. Costs,

Under the provisions of this statute every court of common law has an established system of costs, which are allowed to the .successful party by way of amends for his expense and trouble in prosecuting his suit. It is true, no doubt, and is especially so in this country, (where the legislatures of the different States have so much reduced attorneys’fee-bills, and refused to allow the honorarium paid to counsel to be exacted from' the losing party,) that the legal taxed costs are far below the real expenses incurred by the litigant; yet it is all the law allows as expensa-litis. K the jury may, “if they see fit,” allow counsel-fees', and expenses ask.a part of the actual damages incurred by the plaintiff, and then the court add legal costs de inf cremento, the defendants may be truly said to be in misericordia being at the mercy both of court and.jury. Neither the common law, nor the statute law of any State, so far as we are informed, has invested the jury with this power or privilege, s It has been sometimes exercised by the permission of courts, but its results have not been such as to recommend it for general adop-. tion either by courts or legislatures.

The only instance where this power of increasing the “ actual damages” is given by statute is in the páteñt laws of the United States.' But there it is given to the court'and not to the jury. The jury must find the “.actual damages ” incurred by the plaintiff at the time his suit was brought; and if, in the opinion of the' court, the defendant has not acted in gqpd faith, or has been stubbornly litigious, or' has caused. unnecdssary expense and trouble to the plaintiff, the court may increase the amount of the verdict, to the extent of trebling it. But this penalty cannot, and ought not, to be twice inflicted; first, at the discretion of the jury, and. again at the discretion of the court. The expenses of the defendant over and above taxed costs are usually[*373] as great as those of plaintiff; and yet neither court nor jury can compensate him, if the verdict and judgment be in his favor, or amerce the plaintiff pro falso clamore beyond tax costs. Where such a rule of law exists allowing the jury to find costs de incremento in the shape of counsel-fees, or that equally indefinite and unknown quantity denominated (in the plaintiff’s prayer for instruction) “ &c.,” they should be permitted to do the same for the defendant where he succeeds in his defence, otherwise the parties are not suffered to contend in an equal field. Besides, in actions of debt, covenant, and assumpsit, where the plaintiff always recovers his actual damages, he can recover but legal costs as compensation for his expenditure in the suit, and as punishment of defendant for his unjust detention of the debt; and it is a moral offence of no higher order, to refuse to pay the price of a patent or the damages for a trespass, which is not wilful or malicious, than to refuse the payment of a just debt. There is no reason, therefore, why the law should give the plaintiff such an advantage over the defendant ih One case, and refuse it in the other. See Barnard v. Poor, 21 Pickering, 382; and Lincoln v. the Saratoga Railroad, 29 Wendell, 435.

We are of opinion, therefore, that the instruction given by the court in answer to. the prayer of the plaintiff, was correct.

The instruction to the jury, also, was clearly proper as respected the measure of the damages, and that the jury had nothing to do with the question whether their verdict would carry costs. The judgment is therefore affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On.consideration whereof, it is now here ordered and adjudged by mis court, that the judgment of the said Circuit Court in this cause be, and the 'same is hereby,- affirmed, with costs, for the defendants in error.