
    John F. Welch vs. The North Eastern Railroad Company.
    
      Counsel Fee — Damages.
    A counsel fee, which the plaintiff may be required to pay his counsel ill the cause, is not, in this State, to be allowed by the jury in estimating the plaintiff’s damages.
    BEFORE WHITNER, J., AT WILLIAMSBURG, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action on the case to recover damages for a trunk lost. The plaintiff resided near' Graham’s Cross-road, had visited Charleston, and purchased a trunk and some clothing. The value of the contents, at first cost, after rather a tedious inquiry of a fellow traveller, who occupied same room at hotel, was conceded to be fifty-five dollars.
    “ Another witness who had gone down and returned with the plaintiff proved the delivery of the trunk to the conductor, who marked it for Graham’s, but gave no check.
    “ Two or three witnesses proved that the train was behind time, and arriving at Graham’s aftern ight, the delay was so brief as barely to allow passengers to get off, and a very hurried delivery of baggage, which consisted of a single trunk and bandbox. Immediately as the train passed off, the plaintiff claimed the trunk, and was removing it, when he was stopped by the witness, to whom in fact it was ascertained to belong.
    “In the defence the conductor proved that all the baggage received had .been delivered. That when the train stopped at all, at a depot, his habit was to stop at least a minute, and always long enough to put off passengers and baggage, and that on this occasion, several trunks were delivered on the platform, and no claim made at the time, or for several days after, for another trunk.
    “Evidence was offered, by way of enhancing damages, of the amount of a reasonable fee in such cases tó be paid to attorneys. The. matter was debated between counsel, but rather, it seemed to ine, as to the true sum which should be allowed for such a service. Hence, on this subject, I have a distinct impression, I in no way participated, further than to join my own reprobation with that of defendants’ counsel, as to the practice of suing in the higher jurisdiction, when a summary process would confessedly attain all .the ends of justice. In estimating the injury, the jury were told they might add as a compensation for the delay, such sum as would be equivalent to the interest, and also any special value imparted at the point of destination, and injury resulting from the particular occasion for which, the new suit was needed, though as we were not informed of any special damage, even in the delay of his marriage, much less the loss of a wife, I was unable to give them any rule on the subject.
    “Let this all be as it may, if wrong has been done to defendants, I am willing to share with the counsel on each side the blame that attaches in adding a fee to the value of the clothing, for in point of fact, the jury came into court with a verdict for damages by items, fifty-five dollars for clothing, fifteen dollars for counsel fee, and three dollars for interest, and this I permitted to be reformed by a verdict for seventy-three dollars, willing enough to get rid of the only remaining case for the Term, and which I thought had been very unnecessarily protracted.”
    The defendant appealed, and now moved this court for- a new trial on the grounds:
    1. Because, it is respectfully submitted, that his Honor erred in charging the jury that they might take into consideration the counsel fee of the plaintiff as a part of his damages.
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    2. Because, even if counsel fee is a legitimate item damage, there was no proof that there had been any paid; and, therefore, the jury erred in taking it into consideration as a part of the damage sustained.
    Pressly, for appellant,
    cited Sedg. on Dam. 99, 369, 370,. 375, 549, 551, 552, 553, 570 ; 3 Dal. 30; Ang. on Car. 466.
    
      Pargan, contra.
   Curia, per O’Neall, J.

In this case we do not think that the counsel fee — fifteen dollars — was properly allowed as part of the plaintiff’s damage. Such an item has never been allowed in this State.

It cannot be said to be a necessary result of the act done by, or negligence of the defendant. If this had been a case in which vindictive damages could be given, and the jury had found a sum in gross beyond the value of the article lost, then indeed their vérdict would not have been disturbed. But in this case there is nothing which calls for such a verdict. The jury having found specifically fifteen dollars for the counsel fee, their verdict must be reformed so as to exclude that.

It is therefore ordered that a new trial be granted, unless the plaintiff shall, within thirty days from notice of this order, enter upon the record before the Clerk of Williams-burg District, a remittitur of fifteen dollars.

■ Wardlaw, Withers, Whitner, Glover, and Munbo, JJ., concurred.

New Trial, Nisi.  