Reese & Co. v. Bates. Supreme Court of Appeals: At Richmond. February 18, 1897
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... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact firstname.lastname@example.org. VIRGINIA LAW REGISTER. VIRGINIA LAW REGISTER. Flanders v. Tweed, 15 Wall. 450; Oelrichs v. Spain, Do. 210; Day v. Woodworth, 13 How. 363; and Conrad v. Ins. Co., 6 Pet. 262. Where parties in good faith differ as to their rights and resort to law to settle their differences, the law has prescribed what costs shall be taxed and what shall be therein included as the fee of the winning party. In such case, no greater fee should be allowed to be proved or recovered. The litigants should be placed on equality. If the defendant is successful, it is very clear that he cannot recover fiom the plaintiff in addition to the taxable costs the fee paid by him to his attorney; nor should the plaintiff; if successful, recover from the defendant the fee he may have paid or incurred to his attorney. The record shows no such circumstances of wantonness or outrage as entitles the plaintiff' to exemplary damages, and the jury erred in including in their verdict, as part of the damages of the plaintiff, the fee of his attorney in the injunction suit. Applying the foregoing principles to the case at bar, we are of opinion that there was no error to the prejudice of the defendant in the rulings of the court upon the demurrer to the declaration. The grounds assigned in support of the demurrer were more properly matters for instructions after the introduction of the testimony. The judgment of the lower court must, however, for the errors referred to, be reversed and a new trial awarded. And, without referring specifically to the instructions given and refused on the last trial, the court is directed, if the testimony on the new trial be the same, or substantially the same, as on the former trial, and instructions be asked for, to instruct the jury in accordance with the views expressed in this opinion. Reversed. BY THE EDITOR.-In Buena Vista Co. v. Macandlish, 92 Va. 297, 306, this court, for the first time, we believe, put the plaintiff in the court below on terms to release a part of his recovery or else submit to a new trial. Might not the same thing have been done in this case, and thus have saved the expense of a new trial ?