We have said that the principle of compensation is that which lies at the foundation of the common-law measurement of damages. And this is not the less true, although there are difficulties in the application of this principle, and exact and adequate compensation is seldom the result of a lawsuit Thus, the expenses of reaching this result, as counsel fees and the like, and the labor and anxiety even of successful litigation, are not often compensated, in fact, although the theory of the law, perhaps, includes so much of this as is actual labor and expense, in the costs recovered. (j)1 treat the sum fixed upon as liquidated damages. Sainter v. Ferguson, 7 C B. 716; Fletcher v. Dyche, 2 T. R. 32; Gammon v. Howe, 14 Me. 250; Tingley v. Cutler, 7 Conn. 291; Mott v. Mott, 11 Barb. 127. See Lowe v. Peers, 4 Burr. 2225; Smith v. Smith, 4 Wend. 468. If the payment of the money appears to have been intended only to secure the performance of the main object of the agreement, the courts incline to hold it a penalty. Sloman v. Walter, 1 Bro. Ch. 418; Graham v. Bickham, 4 Dall 149; Merrill v. Merrill, 15 Mass. 488. But where the seller of the good-will of a business promised to pay $900 if he violated the contract as to the good-will, it was held, that this amount was agreed on as stipulated damages. Cushing v. Drew, 97 Mass. 445.

(j) In the theory of the law, the taxed costs are full indemnity for the expenses of a suit. In Doe v. Filliter, 13 M. & W. 47, in an action of trespass for mesne profits, the question was, whether the plaintiff was entitled to full costs, in the action of ejectment, as between attorney and client, or whether the taxed costs were to be considered as a full indemnity. The court held the latter. Alderson. B., said: "The taxed costs are intended to be a full indemnity to the plaintiff for his expenses in getting back the land. That is the principle; whether it be fully carried out in practice, is another matter. The question is, What is to be the criterion by which the costs of getting back land are to be estimated 1 A plaintiff in ejectment is in the same situation as other suitors, all of whom sue for their rights, and obtain costs as an indemnity; and as other plaintiffs submit to have their costs taxed, so ought a plaintiff in ejectment. If the taxed costs are not a full indemnity, they ought to be made so." But in cases where the costs are not taxed, the plaintiff may recover his full expenses. Grace v. Morgan, 2 Bing. N. C. 534; Doe v. Filliter, supra, per Pollock, C. B. In admiralty courts, where the costs are at the discretion of the judge, counsel fees and the full of the ad damnum, which cannot be exceeded, (m) We shall recur to this question, of including expenses in damages, again.

1 In Westfleld v. Mayo, 122 Mass. 100, Lord, J., states the rule to be that, " when a party is called upon to defend a suit, founded upon a wrong, for which he is held responsible in law without misfeasance on his part, but because of the wrongful act of another, against whom he has a remedy over, counsel fees are the natural and reasonably necessary consequence of the wrongful act of the other, if he has notified the other to appear and defend the suit. When, however, the claim against him is upon his own contract, or for his own misfeasance, though he may have a remedy against another, and the damages recoverable may be the same as the amount of the judgment recovered against himself, counsel fees paid in defence of the suit against him are not recoverable." Fisher v. Val De Travers Asphalte Co. 1 C. P. D. 511, following Baxendale v. London R. Co. L. R. 10 Ex. 35, decided that one who reduces a claim, for which he is liable and for which another is liable over, by disputing it, cannot recover the expenses incurred in so doing, in addition to the reduced claim, of such other person. - K.

In some suits, especially in those for * the infringement of patents, the magnitude of the expense, in proportion to the sum recoverable in the suit itself, has led some courts to allow juries to include this expense in their verdicts: but we cannot think this legal, (k) The principle of compensation has, nevertheless, great power, and courts now seek to apply it to the measurement of damages even more than formerly. One of its consequences is that the plaintiff can generally recover, according to his proof, more or less than the amount * specified in his declaration.(l) The only absolute limitation being the amount expenses of litigation are often allowed. The Amiable Nancy, 3 Wheat. 546; The Venus, 5 Wheat. 127; The Appollon, 9 id. 362; Canter v. American and Ocean Ins. Co. 3 Pet. 307. And in the common-law courts, even in cases where the costs are taxed, this theory has not always been acted upon. In actions on covenants of warranty, and of seisin in the sale of real estate, the reasonable expenses of defending a previous suit for the recovery of the property, consisting of counsel fees and the like, have been recovered. Staats v Ten Eyck, 3 Caines, 111; Pitcher v. Livingston, 4 Johns. 1; Waldo v. Long, 7 id. 173; Sumner v. Williams, S Mass. 162; Swett v. Patrick, 3 Fairf. 9; Hardy v. Nelson, 27 Me. 525. But see Leffingwell v. Elliott, 10 Pick. 204; Robinson v. Bakewell, 25 Pa. 424. So the expenses of defending a prior suit. on a breach of an implied warranty of title, on the sale of personal property, were allowed in Kingsbury v. Smith, 13 N. H. 109; but in Armstrong v. Percy, 5 Wend. 535, the courts refused to allow more than the taxed costs. See Blasdale v. Babcock, 1 Johns. 518; Lewis v. Peake, 7 Tannt. 153. In actions on the case and trespass, juries have sometimes been allowed, in assessing damages, to take into consideration counsel fees and other reasonable expenses in prosecuting the suit. Linsley v Bushnell, 15 Conn. 225, Waite, J., dissenting. Noves v. Ward, 19 id. 250; Marshall v. Betner, 17 Ala. 832; Whipple v. Cumberland Manuf. Co. 2 Story, 661; Thurston v. Martin, 5 Mason, 497. And see Ah Thaie v. Quan Wan, 3 Cal 216. But the weight of authority appears to be against such allowance. Barnard v. Poor, 21 Pick. 378; Lincoln v. S. & S. R. R. Co. 23 Wend. 425; Good v. Mylin, 8 Barr, 51, overruling Wilt v. Vickers, 8 Watts, 235, and Rogers v. Fales, 5 Barr, 154.159; Young v. Turner, 4 Blackf. 277. The authority of Whipple v. Cumberland Manuf. Co., and Thurston v. Martin, is overthrown in the late case of Day v. Woodworth, 13 How. 363, where Barnard v. Poor, and Lincoln v. S. & S. R. R. Co. were approved, and what appears to be the true rule was stated by Grier, J., who, after asserting that vindictive or exemplary damages may be given in certain cases, adds: "It is true that damages, assessed by way of example, may thus indirectly compensate the plain. tiff 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."