Hallett Kilbourn vs. John G. Thompson.
Law. No. 16,288.
Decided November 24, 1883.
1. Damages are, in law, of two kinds, viz., first, vindictive, punitive or exemplary; and, secondly, compensatory only. The first may be awarded against a defendant who has been guilty of malice or wanton excess or abuse of authority towards the plaintiff, or wilful and culpable negligence, resulting in injury; and they are intended not only to compensate the plaintiff for his injury, but, in addition thereto, to punish the defendant and make an example of him.
2. In the absence of the above mentioned elements from the wrong, and especially where the defendant has acted under a supposed legal authority, the damages allowed must be only such as to compensate the plaintiff for the actual loss and injury that he has suffered.
3. The plaintiff, being a witness before a Congressional committee, engaged in an investigation into the private affairs of a citizen, refused to answer certain questions, whereupon the defendant, who was the Sergeant-at-Arms of the House of Representatives, arrested and confined him for a period of thirty-five days, in the jail of the District of Columbia, under a warrant from the Speaker of the House. On suit brought to recover damages, there was no evidence tending to show, or offered for the purpose of showing, that the plaintiff’s mere absence from his business by reason of his imprisonment had any evil effect upon it. There was some evidence that the plaintiff contracted a fever which lasted several months. It did not, however, confine him to his bed, or even to his house a great deal, and did not occasion any acute suffering, but simply general depression, which yielded in the course of time to treatment and the influence of travel and change of scene, for which, including medical attendance, some expense was incurred, but the amount formed no appreciable part of the verdict for damages, which was founded almost entirely upon the supposed injury to the person and the outrage to the feelings of the plaintiff. This was the main theme of the argument, and the ground upon which the strongest appeal was made to the jury. In respect of the injuries of this nature suffered by the plaintiff, it was in evidence that the defendant not only exercised all due forbearance, but took the trouble to mitigate the unpleasantness of the plaintiff’s position as far as possible, and to deprive it of all circumstances of humiliation and degradation. Under these circumstances, the jury assessed the damages at sixty thousand dollars, which verdict the court set aside as excessive.
4. If the Sergeant-at-Arms of the House of Representatives is illegally ordered by the House to arrest and confine a citizen, and he acts therein only in obedience to such warrant, and in the honest belief that he is discharging his duty as an officer of the House, and without malice to his prisoner, or any unnecessary harshness in the manner of executing his supposed duty, the plaintiff is not entitled to recover exemplary damages, but only such as will compensate him for the actual loss and injury lie may have suffered in consequence of the acts of the defendant. ^
5. In estimating the compensatory damages, the jury may allow for the personal inconvenience, and for sickness and bodily and mental suffering, which they may find to have been the direct consequence of the defendant’s act of confining the plaintiff, and for the expenses incurred by the latter in having been restored to health.
*4026. If the time of the plaintiff, lost in consequence of his arrest and confinement, had an actual pecuniary value to him, the jury may allow for the time so lost.
7. If the jury find that the plaintiff had an existing business of value, at the time of his arrest, which was destroyed by the fact of his arrest and confinement by the defendant, they may allow for the loss so occasioned.
8. But the jury are not to award damages for the loss of mere possible speculative or conjectural gains, which it may be supposed that the plaintiff might have realized in the future but for his arrest; neither are they to give damages for any injury to the plaintiff ’s credit, or wounding of his feelings and sensibilities, by or in consequence of language used or acts done by the House of Representatives, or its committees or members, nor for any detention or confinement of the plaintiff after he was discharged from the defendant’s custody.
9. In sueli an action the defendant has no legal recourse against the United States if he shall be compelled to pay damages.
STATEMENT OE THE CASE.
This was an action for damages for false arrest aud imprisonment of plaintiff’ by defendant as sergeant-at-arms of the House of Representatives, under a warrant of the Speaker of the House.
On the 24th day of January, 1876, the House of Representatives of the United States adopted the following preamble and resolution :
“ Whereas, the Government of the United States is a creditor of the firm of Jay Cooke & Co., now in bankruptcy by order and decree of the District Court of the United States in and for the Eastern District of Pennsylvania, resulting from the improvident deposits made by the Secretary of the Navy of the United States with the London branch of the said house of Jay Cooke & Co. of the public moneys ; and whereas the matter known as the real estate pool was only partially inquired into by the late joint select committee to inquire into the affairs of the District of Columbia, in which Jay Cooke & Co. had a large and váluable interest; and whereas, Edwin M. Lewis, trustee of the estate and effects of said firm of Jay Cooke & Co., has recently made a settlement of the interest of the estate of Jay Cooke & Co. with the associates of said firm of Jay Cooke & Co., to the disadvantage and loss, as it is alleged, of the numerous creditors of said estate, including the Govment of the United States; and whereas, the courts are *403now powerless, by reason of said settlement, to afford adequate redress to said creditors ;
“ Resolved, That a special committee of five members of this House, to be selected by the Speaker, be appointed to inquire into the nature and history of said real estate pool and the character of said settlement, with the amount of property involved, in which Jay Cooke & Co. were interested, and the amount paid or to be paid in said settlement, with power to send for persons and papers, and report to this House.”
The committee was appointed and proceeded to make the investigation with which it was charged.
Hallett Kilbourn was summoned to appear as a witness before the committee, and to bring certain private papers relating to the subject. When he appeared, he refused to produce the papers and refused to answer certain questions. On the report of these facts to the House, they ordered that the Speaker issue his warrant to the sergeant-at-arms, John G. Thompson, commanding him to arrest Kilbourn and bring him to the bar of the House, to show cause why he should not be punished for contempt. Kilbourn was-arrested and brought to the bar of the House, and, upon his continued refusal to obey the summons aforesaid, was adjudged guilty of contempt, was ordered by the House to be recommitted to the custody of the sergeant-at-arms and imprisoned in the common jail of the District, until he should purge himself of the contempt.
The Speaker issued his warrant accordingly, and Kilbourn, by virtue of it, was imprisoned by the sergeant-at-arms in the District jail, and remained there for thirty-five days, when he was discharged by Chief Justice Cartter, on habeas corpus, and delivered into the custody of the marshal of the District, to answer an indictment found against him by the grand jury, under the act of Congress “ concerning witnesses summoned by either House,” of January 24, 1857,11 Stats, at Large, 155.
He thereupon sued Thompson, the sergeant-at-arms, the Speaker, M. C. Kerr, and several members of the House, *404viz., John M. Glover, Jeptha D. New, Burwell P. Lewis and A. Herr Smith, for trespass.
Thompson justified under the Speaker’s warrant.
The others pleaded the general issue, and justification in special pleas. Kilbourn demurred to the special pleas. The demurrer was overruled and judgment entered for defendants. A writ of error was sued out to the Supreme Court of the United States, and the judgment sustained as to the members of the House, but reversed as to Thompson, and the Speaker’s warrant was held no defence to the action, as to him. Kilbourn vs. Thompson, 108 U. S. 168.
The case then came on for trial again as against Thompson.
The declaration averring no special damages, all evidence as to injury to business and health and loss of time was ruled out. The jury found a verdict assessing the damages at |100,000, which was by the court set aside as excessive.
After this the plaintiff amended his declaration, averring special damages. Besides the general issue, the defendant pleaded justification in a new form, which did'not show the nature of the inquiry in which Kilbourn was summoned as a witness,» or that it was in a matter beyond the jurisdiction of the House ,- and also pleaded the statute of limitations to the new averments of damage. These pleas were demurred to.
The case coming on for trial anew, before Justice Cox, the demurrer of the plaintiff was sustained, and the case went to the jury on the general issue, the matter alleged in the special pleas being given in evidence in mitigation. After the evidence closed, the court gave the following written instructions, having refused to give those asked for by the defendant.
“Damages are, in law, of two kinds, viz.: first, vindictive, punitive or exemplary; and, secondly, compensatory only.
“ The first may be awarded against a defendant who has been guilty of malice or wanton excess or abuse of authority towards the plaintiff, or wilful and culpable negligence, resulting in injury ; and they are intended not only to compensate the plaintiff for his injury, but, in addition thereto, to punish the defendant and make an example of him.
*405“ In the absence of the above mentioned elements from the wrong, and especially where the defendant has acted under a supposed legal authority, the damages allowed must be only such as to compensate the plaintiff' for the actual loss and injury that he has suffered.
“ If, therefore, the jury find that the defendant was the sergeant-at-arms of the House of Representatives, and was ordered by the House to arrest and confine the plaintiff in the jail of the District, and that the defendant acted therein only in obedience to said order and in the honest belief that he was discharging his duty as an officer of the House, and without malice to the plaintiff, or any unnecessary harshness in the manner of executing his said supposed duty, the plaintiff' is not entitled to recover in this action any exemplary damages, but only such as will compensate him for the actual loss and injury he may have suffered in consequence of the acts of the defendant.
“In estimating the compensatory damages, the jury may allow for the personal inconvenience, and for sickness and bodily and mental suffering, which they may find to have been the direct consequence of, the defendant’s act of confining the plaintiff', and for the expenses incurred by the latter in having been restored to health.
“ If the time of the plaintiff, lost in consequence of his arrest and confinement, had an actual pecuniary value to him, the jury may allow for the time so lost.
“If the jury find that the plaintiff'had an existing business of value, at the time of his arrest, which was destroyed by the fact of Ms-arrest and confinement by the defendant, they may allow for the loss so occasioned.
“ But the jury are not to award damages for the loss of mere possible speculative or conjectural gains, which it may be supposed that the plaintiff might have realized in the future but for his said arrest; neither are they to give damages, as against this defendant, for any injury to the plaintiff’s credit, or wounding of his feelings and sensibilities, by or in consequence of language used or acts done by the House of Representatives, or its committees or members, nor *406for any detention or confinement of the plaintiff after he was discharged from the defendant’s custody on the 18th of April, 1876.”
The arguments having been closed, the court gave the following charge to the jury :
Gentlemen oe the Jury : The argument has apprised you that this is an action for false imprisonment. In this species of action, if the defendant can show that he acted by legal authority, it is always a complete defence. In the' present action, the defendant did plead that he.acted by virtue of a warrant issued to him from the Speaker of the House of Bepresentatives, in pursuance of a resolution of that House, declaring the plaintiff' in this case to be in contempt of the House, and directing his imprisonment as a punishment for that contempt. This court held that to be a sufficient defence, and entered judgment for the defendant; but the case was carried to the Supreme Court of the United States by the plaintiff, and that court reversed the judgment of this court. It held that, although in a certain class of cases, such, for example, as cases relating to the election of its own members, either House of Congress has the right to institute investigations, to summon witnesses and to compel them to answer inquiries under penalty of imprisonment, yet that in a case like this, which really was an investigation into the private affairs of a citizen, neither House of Congress has a right to put a witness upon the stand and exact an answer from him under penalty of imprisonment for refusal; and that, therefore, the warrant of the Speaker, commanding the arrest and imprisonment of this plaintiff', was unlawful and constituted no defence to this defendant in the present action. The case now comes back here, therefore, to be tried anew, and inasmuch as no other defence is relied upon, I am constrained to hold, under the ruling of the Supreme Court, that the plaintiff is entitled to a verdict, and that the only question for you to determine is what amount of damages he ought to receive.
In entering upon this investigation, it is important for *407you to bear one or two things in mind ; and the first is, that this is not an action against the United States in any sense, or against the members of Congress or the House of Representatives, or any of its committees. The action was, in the first instance, instituted not only against the defendant, Thompson, but against the Speaker of the House of Representatives and several members of that body ; but this court held, and the Supreme Court of the United States affirmed its judgment in that respect, that a member of Congress is not answerable in damages for his official action ; and consequently judgment was entered in favor of those defendants, and they are out of this ease. It is, therefore, now, a ease only against the defendant John G. Thompson.
It is further important for you to bear in mind that the defendant has no recourse against the United States for indemnification or reimbursement if he shall be compelled to pay damages for the alleged grievance. It is important to bring this to your attention, because otherwise it might be supposed not to be a matter of any importance, so far as this defendant is concerned, what amount of damages you award against him. The United States took no part in the proceedings which resulted in the arrest of the plaintiff. It was the action of one branch of Congress, the House of Representatives, and that body passed out of existence six years ago. Three other Houses of Representatives have since been elected. No future House of Representatives is bound to consider itself responsible for the action of its predecessors, and it may not choose to endorse that action. No money can be appropriated to reimburse or indemnify this defendant for anything which he shall be obliged to pay, except by the concurrent action of both Houses of Congress, approved by the President; and inasmuch as neither the Senate nor the President had any participation in these proceedings, neither may feel any moral responsibility, as neither is under any legal responsibility for the injury done to the plaintiff.
You, therefore, see that the defendant is the person alone to bear the responsibility for his actions, and it will be doing *408him great injustice to charge upon him the responsibility which you would only be willing to charge upon the United States, and which you would not charge upon him except in the belief that the United States would assume the obligation to pay. You are to deal with him, therefore, as personally and solely responsible, without hope or expectation of indemnity or reimbursement.
Another very important thing for you to do is to discriminate, as far as you can, between what was done by the House of Representatives or its committees or its members, and what was done by this defendant. For the former, the plaintiff has no redress except by appeal to the magnanimity of Congress or to its sense of justice. For the latter he has recourse against this defendant. The plaintiff may complain, with more or less justice, that the proceedings in the House of Representatives involved imputations against him and excited suspicions against his integrity, and that, in some respects, those proceedings, especially the proceeding which has been adverted to in the shape of a resolution, largely voted for, seeking to coniine him to the regimen of the ordinary inmates of the jail, were insulting and exasperating and wounding to his sensibilities. This, of itself, would be a ground of consideration with the jury in a case where the damages might be explemplary ; but what I wish to observe is, that these particular acts are not chargeable to this defendant. What the defendant did was, under a mistaken sense of duty we may say, simply to arrest and confine the plaintiff. That is the act for which he is responsible. You are to consider, in that connection, all the direct consequences, the inconvenience and other consequences to this plaintiff, resulting from that act alone, and not from antecedent action on the part of the House of Representatives or its committees or members. The importance of understanding that the real party with whom you have to deal is this individual defendant is apparent therefore from several considerations. The first is, that the injury committed by him is different from the injury which may be attributed to the House of Representatives or its committees or members, and *409the measure of damages by which you would be guided in dealing with the one or the other would be different. If this ease were a case for exemplary damages, that is, damages intended to make an example of the offending party, you would be apt to be governed by a very different rule if you were dealing with the United States than that which would control you in dealing with an individual citizen. If, for example, you had the plethoric Treasury of the United States to respond for an injury, you would adopt a very different figure as a means of making an example of the Government from that which would guide you in making au example of an individual ci tizen with the ordinary resources of such.
Now, we come to consider what is the rule of damages. It has been explained to you so fully by counsel that but very little more is necessary from me. That general rule is, assuming the same act of wrong to be done by different persons or at different times, if it is done with a wanton disregard for private right, or with circumstances of aggravation, as, for example, if the defendant had thrown the plaintiff into a filthy cell and made him there the companion of drunkards and felons, denying him every comfort and convenience, it would be a case for exemplary damages, such as would not only compensate the plaintiff, but would act as a punishment upon the defendant, and as an example to other people to deter them from wrongs of the same kind. But if, on the other hand, the wrong is committed under a sense of duty, under an honest bona fide belief that the party is simply discharging his duty, and with no aggravating circumstances, with nothing calculated to exasperate or wound the sensibilities of the party injured, there the law looks upon it as a case for compensation only, and not for punishment or example.
Here I may refer briefly to the condition of opinion in reference to this particular proceeding at the time that it was commenced. You have heard something of the history of this question about the rights of Congress. As far back as the year 1818, a case arose very similar to the present one *410in some of its features. A man named. Anderson was arrested under a warrant from the then speaker of the House of Representatives, who was no less a person than Henry Clay. He was brought to the bar of the House and.detained there under examination for some days, and finally discharged with a reprimand. He sued the sergeant-at-arms of the House to recover damages, precisely as this plaintiíf has done in the present case. That ease went to the Supreme Court of the United States, and that court held, in the year 1821, over sixty years ago, that the House of Representatives had the power to punish parties for contempt of its authority. The circumstances of that case were not very fully developed in the report of the opinion, but from that time down until the determination of the present cause, there was a general opinion in the profession, although perhaps not very definite, that either house of Congress had a right to protect its dignity and assert its authority by punishing for contempt or disobedience to its orders. Our own courts had acted under that impression. Perhaps thirty years after the case of Anderson and Dunn, one Nugent was committed to prison by the Senate of the United States for some disobedience of its orders or some contempt of its authority, and he was remanded to prison by the old circuit court of this District under the influence of that decision. When the present case came on for trial in this court, under the authority of that same case of Anderson and Dunn, this court felt itself bound to hold that the House of Representatives had the authority which it asserted. It was not until the case went before the Supreme Court, and they investigated the subject more thoroughly than ever before, that the conclusion was reached by that court, the highest legal authority in the land, that the case of Anderson and Dunn was erroneously decided so far as it wTould have application to cases of this kind. I mention these circumstances simply to show that there was at least ground for the belief that the House of Representatives had the authority which it proposed to exercise in this case, even on the part of members of Congress; that is to say, they even might be honestly *411mistaken on that question. How much more might not the defendant have been mistaken, as he is not to be supposed to be so thoroughly versed in the principles of law as to see the previous errors of the Supreme Court of the United States.
Now, if that was the ease, I have to instruct you that if the defendant acted simply in obedience to the mandate of his superiors, and in honest belief that he was discharging a duty imposed upon him by his relations to the House, and that he acted without any aggravating circumstances in his dealings with the plaintiff, then it is a case simply for compensation. I believe it is the assertion of the plaintiff' himself that the defendant did exercise all the forbearance consistent with his sense of duty ; and the plaintiff' disavowed on the stand any resentment towards the defendant himself for anything excepting the actual circumstance of obedience to the mandate of the House of Representatives.
Then assuming that this is a case simply for compensation, the next question is: what are the elements of compensatory damages ? You will understand that you must eliminate from this inquiry all those aggravating circumstances with which the defendant was not identified, all those proceedings in Congress which involved disaster to his credit, imputations upon his integrity and everything of that kind. The defendant in arresting and confining the plaintiff imputed nothing to him. He acted simply in obedience to higher authority. The fact of which the plaintiff has to complain against him is the fact of his confinement and all the disagreeable direct consequences to him.
In the first place the result to him was the unpleasantness of being confined at all under guard and being deprived of his liberty. Another thing was the unpleasantness of confinement in a jail with all the odious associations attached to that name and that place. On the other hand you must bear in mind the evidence in this case tending to establish the fact that the defendant not only exercised all due forbearance to the plaintiff, but took the trouble to mitigate *412the unpleasantness of his situation as far as possible. I say you must consider all these circumstances and in the light of them decide how much suffering and affliction the plaintiff' experienced at the hands of the defendant, separate and apart from any of that distress of mind or exasperation of feeling that may have been produced by implied charges against him, contained in the action and language of the members of the House of Representatives.. It is not necessary for me to dwell any more upon this point, except to say that you must consider what he suffered at the hands of this defendant in view of all the circumstances of the case , that you must take the whole conduct of the defendant into consideration and try to separate it from that conduct of other parties, for which he is in no way responsible. Of course the plaintiff is entitled to recover the additional expenses of living that were imposed upon him by this confinement ; that is to say, all the necessary and reasonable expenses ; the expense of restoring himself to health, and, as far as you can do so, you are at liberty to give him a money compensation for his actual suffering by infirmity. You must bear in mind, however, that a mere transient distemper is not very easily measured in money and is not to be the subject of exaggerated damages, but simply those which will compensate, as far as you ean judge what compensation there should be under such circumstances.
Again, as to his loss of time. If you find from the evidence that the plaintiff, by his personal exertions, could have earned and was earning so much per day or week or month while he was at liberty, and that by his confinement he was cut off' from the opportunity of such earning, and it could not be earned in his place by his partners, so that his time, of a daily or weekly or monthly value, was actually lost, by virtue of this confinement, that is a proper subject for allowance.
Independent of the value of his personal time you are also entitled to consider what the value of his business was, and how far that was affected by his illegal confinement. I refer now to the business of the partnership in which he *413was interested. Here, again, I think it is proper that you should distinguish between the action of the House of Representatives and that of the defendant. I understood the plaintiff on the witness stand to complain and express it as his opinion, that the very fact of his being subjected once to an investigation would naturally beget the idea that he was liable to be investigated by Congress in the future, and that would deter customers from resorting to his firm with their business, and that his opinion was that it had done so. If you can consider the subject at all, you must distinguish between the effect of the action of Congress in this direction and the effect of the defendant’s action. The action of Congress in investigating the private affairs of this plaintiff, you may assume, may have had the effect of deterring people from resorting to him afterwards with their business ; but it does not follow that the mere act of the defendant in actually confining him for thirty-five days would have had the effect of deterring people from consulting or dealing with him him afterwards in reference to other private affairs. They may be very different things. That is a question for you to consider.
But another thing you must bear in mind, and that is, that in a matter of this sort you are to act not upon mere conjecture, but proof. It must be established to your satisfaction that the plaintiff’s business was really affected by this illegal confinement, and the proof must be directed to the business of the plaintiff existing at the time of his imprisonment. You cannot deal with mere possibilities that lay in the womb of the future. Let me illustrate this. Suppose the plaintiff, at the time of his arrest, was largely employed by property holders here as a collector of their rents and that he had a certain established income from that source, and that in consequence of his being confined in the jail all these parties took their business away from him. That would be a plain, tangible fact, one susceptible of appreciation and estimation. You could say exactly what business was lost by him in consequence of the confinement. But suppose nothing of that sort existed, but the plaintiff *414simply said on the stand as a witness that but for the arrest he would in the future, he believed, have had certain business and would have realized a certain income. That is merely conjecture. It is speculative. The law does not allow evidence of that description to be received, nor does it allow a jury to consider these mere possibilities as grounds for assessing damages. I therefore said to you in the written instructions that while you may allow for any established business of value which was in your judgment destroyed by the action of the defendant, you are not at liberty to allow for speculative and conjectural gains w'hich either he or you may suppose he might have made in the future, but w'hich are not the subject of strictly legal proof.
As to this question of assessing damages I need not say that you are not to be governed by what any other jury may have done in any other case, but you are to act upon the evidence before you. The evidence varies so much in different cases that no one case is a precedent for a jury.
I have but one word more to say, and that is that the law never expects or contemplates that an injured party shall make a speculation out of his injury. In a case full of aggravation and outrage it does allow play for the feelings of a jury that are naturally excited by the manifestations of outrage upon the rights of other people. But in a case which is purely one for compensation, the law expects that you will not act under the influence of impassioned appeals to your feelings, but will act as dispassionate and cool-headed men, practical business men. All I can say to you is that you are to consider all these circumstances with that disposition, and determine what will be, as far as you can say, adequate remuneration in money to this plaintiff' for the actual injuries that have resulted to him from his arrest and imprisonment by this defendant, John G. Thompson. "With that remark I dismiss you to the deliberation of the jury room.
Mr. Totten. Before the jury retires I desire to bring to your attention a statute W'hich I think you have overlooked. It refers to the attitude which Mr. Thompson will occupy, *415provided the judgment should be rendered against him. It is the act of March 3,1875, chap. 130, sec. 8, 18 Stats., 401, and reads as follows, viz.:
“Sec. 8. That in any action now pending, or which may be brought against any person or on account of anything done by him while an officer of either Houses of Congress in the discharge of his official duty, in executing any order of such House, the district attorney for the district within W'hich the action is brought, on being thereto requested by the officer sued, shall enter an appearance in behalf of such officer; and all provisions of the act of July twenty-eighth, eighteen hundred and sixty-six, entitled, ‘An act to protect the revenue, and for other purposes,’ and also all provisions of the sections of former acts therein referred to, so far as the same relate to the removal of suits, the withholding of executions, and the paying of judgments against revenue or other officers of the United States, shall become applicable -to such action and to all procediugs and matters whatsoever connected therewith, and the defence of such action shall thenceforth be conducted under the supervision and direction of the Attorney General.”
^ The statute referred to in this act is section 989 of the Revised Statutes, which provides as follows :
“ Sec. 989. When a recovery is had in any suit or proceeding against a collector, or other officer of the revenue, for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the pei’formance of his official duty, and the court certifies there was probable cause for the act done by the collector, or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, an execution shall issue against such collector, or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.”
I think in view of these two statutes that your honor incorrectly stated to the jury the position Mr. Thompson will occupy in the event of a judgment against him.
*416The Court. No, I think not; and for this reason, that that law applies entirely to officers of the revenue.
Mr. Totten. But the new statute says that it shall be enforced in these eases.
The Court. Does it say so ?
Mr. Totten. Yes, sir.
The Court. Read it over again.
(Mr. Totten again read the statute in question.)
Mr. Totten. Your honor will see that that puts Mr. Thompson in a veiy differerent attitude from that in which you have placed him in the instructions to the jury just now, because there is an implied obligation of honor, at all events, that an appropriation shall be made. It is true, as your honor said, that Congress may not do it; but still there is a fair inference that they are in duty bound to protect Thompson.
• The Court. All that I did say, was that they may not do it.
Mr. Totten. That is right so far. Your attention, I thought, had not been called to the statute. That is undoubtedly the construction, because Mr. Wilson is here representing the Department of Justice, in addition tp Brother Corkhill, who did not need any assistance.
The Court. All that I said to the jury was that there is no legal obligation upon Congress to respond to the damages that are awarded against the defendant.
Mr. Totten. Nor to make any other appropriation.
The District Attorney. And when the judgment is rendered, it will be a lien upon his property.
The Court. It will be a lien upon his property like any other judgment in any other case. Retire, gentlemen.
The jury rendered a verdict in favor of the plaintiff for $60,000 damages.
A motion was then made, by the defendant, for a new trial on the grounds that the verdict was against the instructions of the court and the evidence, and was excessive. After argument therein, the case was taken under advisement by the court, and on the 24th of November, 1883,—
*417Mr. Justice Cox
delivered the following opinion.
I gave notice, gentlémen, that I would, this morning, dispose of the motion for a new trial in the cause of Kilbourn vs. Thompson. This is one of those cases in which a jury is very liable to be carried away by impulse. I do not mean bad impulse, but, on the contrary, good and generous impulse, because in the direction of redressing wrong; but still one which, unless restrained, is apt to lead to excess; and it is, therefore, a case in which, I think, it is ordinarily the duty of the court to stand guard upon the jury and endeavor to keep them within reasonable limits. It was for this reason that, at the trial, I considered it my duty to charge the jury in such a way as to eliminate from the case the elements which dught not to be allowed to, but .which were very well calculated to disturb the judgment.
I have listened to the arguments on the motion for a new trial with a great deal of interest, and had an opportunity to consider somewhat more maturely the views that were enunciated in my charge, which were my first impressions formed without the aid of discussion.
Some criticism has been made upon the charge in two particulars ; first, upon that part of it which admonished the jury to discriminate between the act of the defendant, and the acts of the House of Representatives, or of its committees or members; second, upon that part which, in substance, advised the jury that they must deal with this case as peculiarly a case against the individual defendant, in which he alone was responsible for the injury complained of, without any legal recourse for indemnity against the United States.
The first instruction was really but a repetition of one which had already been gi ven in writing, at the instance of the defendant, and without objection on the part of the plaintiff. It is very difficult to keep the sins of the House of Representatives out of of this case. The very narrative of the whole transaction, in connection with the case, would give the jury the idea that they were somehow called upon to punish the House of Representatives. That position is *418not taken by counsel, of course; but the whole sentiment of the argument was that the act of the defendant was only a part of the entire drama and was aggravated by the conduct of the House of Representatives, and by the very fact that they had commanded the arrest; and that the whole wrong complained of, from its very inception, ought to be visited upon the defendant. This was a line of argument that counsel would very naturally drift into, in view of the possible provision by law for an indemnity to the defendant for what he might have to pay. These considerations led to the instruction in the charge of which I am now speaking.
The wrong committed by the defendant was the arrest and imprisonment of the plaintiff without lawful authority. The actual injury resulting from this was entirely irrespective of the pretences or the show of authority with which the defendant acted. It would have been precisely the same whether he acted under a warrant from the speaker of the House of Representatives, or a capias from this court, or a commitment from the Police Court of this District. In each of the cases supposed be would be a tort feasor, if his warrant were unlawful; and not more so in one case than in either of the others. The question by what authority he acted is irrelevant to the issue of quantum damnifieatus, except for the purpose of the defence, in the way of mitigation or excuse. If the defendant can show that he acted without malice and in obedience to a supposed lawful authority, this may be used by him to avert exemplary damages, but how it can be used by the plaintiff* to swell the damages it is difficult to perceive. The more exalted the source of authority, the more probable cause the defendant would have for his conduct; but the notion I am speaking of would seem to reverse all this and find in it the greater aggravation.
The fact that the House of Representatives commanded the plaintiff’s arrest' cannot certainly make it a greater wi’ong on the part of the defendant than if he acted without such authority, but it may, on the contrary, palliate it, as Judge Taney said in Mitchell vs. Harmony, 13 Howard.
*419The wrong of the superior who commands cannot be added to that Of the subordinate who obeys, so as to duplicate the latter’s offence and call for double satisfaction ; especially where, as in this case, the act of the superior is not an actionable wrong.
If the injurious act of the House in ordering the arrest is not to be considered as aggravating the defendant’s responsibility, still less must other action of the House in which he had no participation. Otherwise his simple obedience to the Speaker’s warrant would be held to relate back and make him partíceps criminis and joint tort-feasor in every slander uttered in debate, or other injurious act, of which plaintiff may complain ; all of which would, on common law principles, seem to be absurd. Neither does the act of Congress of March 3, 1875, chap. 130, sec. 8, give any countenance to the idea that wrongs committed by the House can be redressed in this action. That act adopts for, and makes applicable to, this kind of action, the provisions of former acts, the material part of which is embodied in section 989 of the Revised Statutes in the following words:
“ Sec. 989. When a recovery is had in any suit or proceeding against a collector or other officer of the revenue, for any act done by him, or for the recovery of any money exacted by or paid to him, and by him paid into the Treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted uuder the directiions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.”
It may be safely assumed that Congress never intended, by this legislation to confer on the citizen the privilege of suiDg the United States for a tort. The right to sue the Government, even in contract, was” tardily and grudgingly bestowed when the Court of Claims was created, and then the litigation was commited to the arbitrament of a court *420and not a jury. To suppose that a single section in an appropriation act was intended to work such a revolution in the policy of the Government as to allow a citizen to sue the United States, in any federal court, and recover damages for a tort, to be assessed by a jury, would be quite extravagant. And yet, if, in a suit like the present, against a subordinate officer, the supposed wrongs done by Congress, or either House, or its personally irresponsible members, by their official acts, can be considered by a jury, or be allowed to influence their assessment of damages, a verdict rendered under such influence, and increased in amount by it, would be a recovery of damages for a tort of the Government, or a branch of it; and if, by the law, a judgment on such verdict is intended to be assumed by the United States, such judgment is thereby made as complete a recovery of damages in tort, against the United States, as if the Government' were a party on the record.
Such a result was certainly never contemplated by Congress. They doubtless intended that in a case of probable cause, and, therefore, of compensation, and not punishment, a judgment against the individual officer, such as would be rendered without reference to any action of the superiors, the Government, should be assumed ; that is in a suit which should be essentially, as well as in form, a suit against the individual ; and, if so, then the fact that such judgments are provided for in the law is not relevant to the issue of damage, and ought not to be considered by the jury or allowed to influence them ; but they ought to deal with the case as if no such possibility existed. This ought to be the case, for the further reason, that the defendant has no certain recourse against the United States, but it not only depends on the disposition of Congress to make appropriations, but even, under the law, it is conditional upon the view which the court may take and certify as to the defendant’s conduct, in reference to the existence of probable cause for his action. These views are fortified by the case of Andrae vs. Redfield, 12 Blatchford, 416. That was a bill in equity brought to enjoin a collector from setting up the plea of *421limitation to a number of actions against him for things done in the course of his official duty. It was urged on the part of the plaintiff that the plea was inequitable in view of the nature of the action, and especially with reference to the ultimate responsibility of the Government. The court says:
“ It is proper to add, in support of the view that the actions at law in question are in fact, as well as in form, actions against the defendant; that,if judgments be recovered thereon, they become liens upon his real estate and although, by a provision in the 12th section of the act of Congress of March 3, 1863, which is now found in section 989 Rev. Stats., it may, upon certain conditions, become the duty of the Secretary of the Treasury to pay the judgments, it cannot be now asserted in advance of .the trial, that such duty will become absolute. Suppose that such payment should not in fact be made. Can it be said that the defendant has no interest in the question of recovery or no recovery against him; and, especially, supposing that the court before which the trial may be held should not deem the case, as developed on the trial, one in which a certificate of probable cause ought to be granted, how then is the defendant to avoid the payment, protect his property from execution, or relieve his estate from the lien of the judgment ? We are not advised that there is anything in the Revised Statutes of the United States which makes these actions any less actions against the defendant; and sections 3009-3014, do not seem to us to change the nature of these actions or deprive the defendant of any defence which he would otherwise be entitled to.”
I, therefore, can see no error in the instructions I gave to the jury, not to consider any complaints against the House of Representatives, and to deal with the defendant as the sole party to respond for the wrong complained of in this suit, without any ultimate recourse for indemnity.
We come now to the facts of the case itself. There are three injuries complained of in this action, excluding what, under the law, I held to be excluded from consideration, *422such as the claim for counsel fees, etc. First, the injury to the business of the plaintiff'. Second, the injury to his health. Third, the injury to his feelings.
I do not see how this verdict could have been founded, and I will not assume that it was founded, upon any evidence relating to the business of the plaintiff. The only evidence that we had on that subject was the testimony of the plaintiff himself, to the effect that he believed that the disposition manifested in Congress to investigate his affairs disaffected customers toward him, and estranged them from him, on account of the natural apprehension that their own business might be investigated if they should entrust it to him. This view was only an opinion which no facts could be given to sustain, and would not be evidence on which a jury could act. It certainly furnished no material for computation. And even if that opinion was well founded, it is to be observed that the mischief apprehended originated and ended in the House of Representatives and its committees, and it may be said to have been completed before this defendant came upon the scene at all. I am unable to see how he could, in the nature of things, have done any damage to the business of the plaintiff, except by taking him from his business and preventing him from giving his personal attention to it.
There is no evidence in the case at all tending to show, or offered for the purpose of showing, that his mere absence from his business had any evil effect upon it ; and it is hardly credible that even if it had been in a prosperous condition, still less in the condition which the testimony demonstrated it to have been in, that the temporary absence of the defendant when he had two partners, both competent business men, and had unrestricted intercourse with them, could have had the effect of destroying his business. I, therefore, assume that this part of the subject probably did not enter into' the computation of damages by the jury.
With regard to the sickness which may be said to be a factor in the claim, including medical expenses, there was some evidence. The evidence was that the plaintiff con*423tracted a fever which lasted several months. This fever did not confine him to his bed, or, as I remember, even to his house, a great deal, and did not occasion any acute suffering, but simply general depression. It yielded in the course of time to treatment and the influence of travel and change of scene. There was some expense incurred, but it is very plain, I think, that no appreciable part of this verdict can be attributed to that.
It is not to be doubted, I think, that almost the entire verdict, and I think for all practical purposes we may say the entire verdict, was founded upon the supposed injury to the person and the outrage to the feelings of the plaintiff. This was the main theme of the argument and the ground upon which the strongest appeal was made to the jury. The question then is, whether the verdict is to be considered excessive, as claimed on the part of the defendant, or merely as adequate compensation for this kind of injury.
A difficulty undoubtedly presents itself here. The courts have held that injury to the feelings is the subject of compensatory and not vindictive damages only. The trouble arises- in the endeavor to draw the line between compensation and vindictiveness. There cannot be an injury to a man’s feelings without causing not only distress, but resentment also, and the difficulty here is to draw the line between alleviating the distress and gratifying the resentment, aud yet courts and juries are bound to draw this line according to the circumstances of each particular case.
On the subject of excess, a number of precedents have been cited on the part of the plaintiff'. We have been referred to the celebrated “General Warrant Oases,” as they are called, which arose in the years 1763-5-9. These were cases growing out of what would be universally considered very high-handed outrages. The Secretary of State in England, who was not clothed with a shadow of judicial authority, undertook to issue his warrant to seize and search the papers of various subjects upon suspicion ; and not • only *424that, but issued his warrant to the king’s messengers, as they were called, who were not officers of the law at all, authorizing them to arrest certain parties who should by them be discovered to be guilty of certain offenses, that is, to be concerned in the publication of the North Briton, which was considered a seditious and libellous sheet. Under these warrants a number of printers were arrested, and, finally, Mi’. John Wilkes was arrested, and actually committed to th'e Tower. They brought suits against the king’s messengers and recovered damages against them ranging from £300 to £400. Then, again, suit was brought by Wilkes against the under Secretary of State, who had been quite officious in these proceedings, and damages were recovered against him to the extent of one thousand pounds. Finally, Wilkes brought his suit against Lord Halifax, the Secretary of State himself, and recovered damages to the extent of four thousand pounds, or twenty thousand dollars.
These verdicts were not based upon any assessment of the value of time, or the business affected by these transactions. They were essentially verdicts for exemplary damages, because the acts complained of were considered gross and outrageous wrongs. In one of the cases for which, I think, a verdict was given for either three or four hundred pounds, the Lord Chief Justice of the Common Pleas, said, upon a motion to set aside the verdict for excessive damages, that “ if the jury had been bound by their oath to consider the personal injury only, perhaps twenty pounds damages would have been sufficient. But the mere personal injury done to the plaintiff, or the inconsiderableness of his station and rank in life, did not appear to the jury in that prominent light in which it might have been presented. They saw only the majesty of the law invaded ; they saw only the exercise of arbitrary power in violation of Magna Charta, and an attempt at the liberty of the kingdom, by insisting upon the legality of the general warrant.” These were the ideas that struck the jury, and it was held that they were therefore justified in giving exemplary damages.
*425The distinction between exemplary and compensatory damages was very imperfectly outlined in the jurisprudence of the common law of that date. It has been better ascertained and certainly more definitely stated since. On this subject I think it proper to refer to one or two cases in the Supreme Court.
In the case of Day vs. Woodworth et al., 13 Howard, 371, the court said:
“In actions of trespass, when the injury has been wanton and malicious, or gross and outrageous, courts permit 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 further by way of punishment or example; which has sometimes been called smart-money.”
In the case of the Philadelphia, Wilmington & Baltimore R. R. Co. vs. Quigley, 21 Howard, 213, which was an action for libel, in a published report, the court says:
“In Day vs. Woodworth, 13 Howard, 371, the court recognized the power of a jury in certain actions of tort to assess against the tort-feasor punitive or exemplary damages. Whenever the injury complained of has been inflicted maliciously or wantonly and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved party. But the malice spoken of in this rule is not merely the doing of an unlawful act. The word implies that the act complained of was conceived in the spirit of mischief or of criminal indifference to civil obligations.”
In the case of the Milwaukie & St. Paul R. R. Co. vs. Arms et al., 1 Otto, 91, which was an action for injury on the railroad, the court applies the rule before stated in Day vs. Woodworth, and says, that no exemplary damages ought to be allowed unless the injury be wilful or the result of reckless indifference to the rights of others.
In the last case on the subject to which I will refer the *426question is still further considered. That is the case of Beckwith vs. Bean, in 98 United States.
That was a case where certain officers of the army during the war arrested a man named'Bean upon suspicion of defrauding the Government in the matter of bounties and procuring desertions. The court reversed the court below for not admitting evidence tending to show actual guilt, but which was not known at the time of the arrest. The court below had rejected that evidence upon the ground that it could not have entered into the question of the motive of the offending party. They say :
“This evidence tended to rebut the presumption of malice which might arise from the simple arrest and imprisonment, unaccompanied by any explanation of the reasons therefor. In connection with evidence which was admitted without objection, it seems to present a case which, under the law, did not call for or admit of vindictive or punitory damages against the plaintiffs in error.”
A little further on the court says :
“ If Captain Henry in good faith believed that Bean was guilty of such misconduct in the enlistment of the two deserters, it was his duty to communicate the facts and circumstances to his superior officers. If the order to Beck-with to arrest Bean was given by him in good faith, believing it to be his duty to obey the command of his superior officer, General Pitcher ; if Beckwith executed the order under a like belief, and in like good faith ; if the arrest was made and the imprisonment ordered from an honest purpose to guard the public interests and protect the army from the evil consequences of sham enlistments and frequent’ desertions—they were entitled, by every consideration of justice, to stand before the jury in a more favorable light upon the question of damages than they would or should have stood had they been actuated by ill-will or sought to oppress one whose conduct had not justified the conclusion that he had violated the law. Every fact, therefore, which served to illustrate the motives which governed the plaintiff in error in committing the trespasses complained of, *427and every fact which fairly conduced to prove the existence or non-existence of just grounds for imputing to Bean the fraudulent and illegal acts charged against him, and which were assigned as the cause of his arrest, were competent evidence, not in justification, but in mitigation of damages. It is the settled doctrine that ‘ damages are graduated by the intent of the party committing the wrong.’ It is equally well settled that in the absence of gross fraud, malice or oppression, in cases of trespass to person or estate, the jury should restrict damages to compensation or satisfaction for the actual injuries sustained.”
Further on, the court adopts the language of the Supreme Court of Ohio in the case of Slimpson vs. McCaffrey, 13 Ohio, 508, as follows:
“The principle of permitting damages in certain cases to go beyond naked compensation, is for example, and the punishment of the guilty party for the wicked, corrupt, and malignant motive and design which prompted him to the wrongful act. A trespass may be committed from a mistaken notion of power, and from an honest motive to accomplish some good end. But the law tolerates no such abuse of power nor excuses such act; yet, in morals and the \iye of the law, there is a vast difference between the criminality of a person acting mistakenly from a worthy motive, and one committing the same act from a wanton and malignant spirit, and with a corrupt and wicked design. Hence, where a jury are called upon to give smart-money or damages, beyond compensation, to punish the party guilty of the wrongful act, any evidence which would show this difference, or rather all the facts and circumstances which tend to explain or disclose the motives and design of the party committing the wrongful act, are evidence which should go to the jury for their due consideration.”
In the light of these authorities, I think that I make no mistake in the definition of the distinction between exemplary and compensatory damages, and in giving instructions to the jury in such terms that in view of the facts tacitly, if not expressly conceded in the case, they could not, with*428out disregarding both law and evidence, render a verdict for examplary damages. If they did mean to do so, I should think it would be sufficient ground for setting aside the verdict.
I will assume, however, that the verdict was intended to be compensatory only, and will discuss the question in that aspect.
I have no guide upon this question except judicial experience and such common sense as has been vouchsafed to me. I cannot form an estimate of the proper rule of damages in this case, except by comparing it with others, and from the point of view that the trespass complained of here must be treated, without reference to the source of authority under which it was committed. Suppose, for instance, that the plaintiff had been arrested by a marshal of this court, under a void process, and put into jail. The question is, whether, in such a case a verdict of this description, as satisfaction for wounded feelings and compensation for the indignity to the person, is reasonable or excessive.
A number of cases have been referred to on the part of the defence, in this connection, which are more or less like the present case. In the first place, there are some actions for malicious prosecution or false arrest upon unfounded charges. The case of Wiggin vs. Coffin, 3 Story, has been referred to. That was an action for malicious prosecution for conspiracy, in which it appeared that the plaintiff had been carried two hundred and fifty miles from his home, had been kept under arrest eighteeu days, and had been brought four times before a court. The court found that there was no probable cause, so that it was a plain case for vindictive damages ; yet a verdict for $1,500 was set aside as excessive.
The case of Rauk vs. McGregor, 32 N. J. L., was an action for arrest on a charge of larceny. The verdict was for $3,000 and it was set aside.
The case of Walker vs. Martin, 43 Ill., 508, was an action brought for malicious prosecution on a charge of larceny. The plaintiff was in prison twenty-one days, and the evi*429dence showed malice and no probable cause, as the court thought. There, a verdict of twenty thousand dollai’s was set aside.
In the case of Brown vs. Chadsey, 39 Barb., 293, the action was for arrest by a police officer upon mere information. The arrest was entirely groundless and a verdict was rendered for $2,000, which was set aside.
These cases are not exactly like the present case. They did not involve any infringement of a fundamental, constitutional right of a citizen. They were cases of arrest and false imprisonment on charges which, if they had been sustained, would have apparently justified the arrest. The grievance in these cases was in making false charges, but yet they are pertinent on the question of satisfaction or compensation for wounded feelings. There is no sort of comparison between the amount of suffering a man must experience in being arrested on a charge of disgraceful crime and being arrested for contempt of court, or any other authority. Frequently people would sympathize with a man in his contempt of court or other authority. Certainly no such arrest involves the least imputation on the honor or integrity or credit of the party arrested.
But the class of cases most akin to the present are those of arrests made by military authority during war, without any warrant of law. The history of the country has undoubtedly abounded with cases of this sort, and the outrages upon personal liberty have been just as great as in any case. I do not believe that many of those cases have found their way into the law books. I have been referred to two or three. One is a case that occurred in 1814, during the war with Great Britain—McConnell vs. Hampton, reported in 12 Johnson, 234. The plaintiff in that case was arrested on a charge of treason, upon suspicion, was confined for five days and was compelled to work. He obtained a verdict for $9,000, and that was set aside as excessive.
During the late civil war, a man named McCall was arrested by General McDowell. The case is found in 1 Deady, 233. He was arrested on suspicion, was confined *430with the prisoners, and was compelled to work with them in the gang. I forget what length of time he was confined, but it was for a considerable time. The damages were assessed by the court, and he wa^ allowed ten dollars per day for the loss of time, and three hundred dollars as compensation for the indignity.
But the most conspicuous of the cases is that of Beckwith vs. Bean, to which I have already referred. I say, most conspicuous, because it came to the Supreme Court, and it is well to look at that ease as stated by Mr. Justice Field, who dissented. I will read from page 285:
“ It appears from the uncontradicted evidence in the record that on the 11th of November, 1864, whilst returning from a trip to Boston to his home in the province of Quebec, he was arrested in a passenger car near Wells river, in the State of Vermont, by the defendant Beckwith, without any warrant or process of law, and taken to Beckwith’s residence, in Sutton, in that State ; that he was detained there during the night under the charge of keepers; that his father, who lived at the distance of about fifteen miles, and for whom he had sent, arrived during the night, but that Beckwith refused to allow them to have an interview, except in his presence; that on the following day he was forcibly taken, by order of the defendant Henry, and placed in the State’s prison at Windsor, where he remained until the 26th of April, 1865, a period of nearly six months, when he was admitted to bail and released from imprisonment; that during this period he w7as locked up at night, and for the first few days, in the day time also, in a narrow and scantily furnished cell, being one in which convicts were confined at night; that after the first few days he was allowed, upon his complaint of the coldness of the cell, to spend the day in the shops where the convicts woi'ked, but he was required to go out and to return when they did, and at no time to be out of sight of a keeper, and not to go on the corridors or in the yard for exercise; that the food offered him was the fare served to convicts, which he could not eat, and that after-wards he obtained his meals from the keeper’s table by *431paying a small sum each week; and that, during this period, no complaint against him was filed with any magistrate; he was held simply upon the order of the defendants.”
* * * * *
“ The record also shows that the plaintiff, throughout his imprisonment, made constant efforts in various ways to obtain a trial or a release on bail, which he was able and willing to furnish; and that eleven journeys were made by his father from the northern part of Vermont to Windsor and Brattleboro for that purpose. Among other efforts, the plaintiff appealed by letter to General Dix, the commander of the department, to order him to be brought to trial and to give him an opportunity to prove his innocence. But no trial was allowed him—that right which belongs or ought to belong to every one, even the humblest in the land, was denied to him—a born citizen of the United States. * * *
“ To add to the enormity of this case, the district attorney of the United States for Vermont states, in his testimony, that there were many other cases in his district, during the war, of persons charged with inciting or assisting soldiers to desert, and that they were all turned over to him to be prosecuted, and that they were prosecuted by him in the civil courts; but that he knew nothing of this case until April, 1865, and that soon afterward the plaintiff" was released on bail.”
In that case the verdict was $15,000, and that is the highest verdict which has been brought to my attention.
It is, perhaps, just as well to institute a comparison between the circumstances of that case and this. The confinement of Bean, as will be seen from a perusal of the facts, was a very grievous one. He was confined with convicts, offered only prison fare, and denied every comfort. The arrest of the plaintiff" in this case was scarcely more than a friendly invitation. Certainly, there were no circumstances of humiliation or degradation about his imprisonment. In the Beckwith and Bean case the plaintiff recovered only $15,000 for nearly six months’ imprisonment. In the present case there was a verdict of $60,000 for thirty-five days’ imprison*432ment. In other words, if an equation of time and amount be stated, it will be seen that the plaintiff' in this case recovered twenty times more than the plaintiff in the Bean case, and that case is the most considerable one which has been brought to my attention.
It must be apparent, then, that this verdict, as regards the amount, is certainly without precedent. It may be said that the case is without precedent; but that, I think, is entirely a mistake. The action of the House of Representatives was , hardly precedented, but Congress is not being tried in this case. The act of the defendant had many precedents. It is difficult to resist the impression that the jury in this.ease thought they were inflicting punishment upon, or making an example of, the House of Representatives. If they could do it, I am not prepared to say that the verdict in the first trial would be one cent too much. But that cannot be discussed in this case. In the light of all the precedents, I cannot resist the conviction that the verdict in this case was excessive. I come to this conclusion with the greatest reluctance. I hoped at the outset that the verdict would be one which could be sustained, and had it been rendered for any amount from $10,000 to $20,000, or perhaps more, although doubtless most courts would have considered that extravagant, I should not have interfered with it. Under the circumstances, I deem it to be my imperative duty to set the verdict aside, and award a new trial.
Note.—This case was retried at a subsequent term of the court. The facts introduced in evidence were about the same as in the former trial. A verdict was rendered for $37.-500. On a motion to set aside the verdict as excessive, the court ordered the plaintiff' to file a remittitur of $17,500, or stand a new trial. The remittitur was accordingly entered.