The Chief Justice.—How much was the amount of the property insured?
Mr. Sergeant Lens replied that it was upwards of 70,000l.
The Chief Justice.—I think (whether the cost of experiments be allowed or not) it was right, in a case of such importance, that they should have been made; but I wish it could be shewn to me whether there was any compact between the parties for making them.
Mr. Sergeant Hullock, who appeared for the defendants, here observed that he knew of no compact of that nature.
Mr. Sergeant Taddy.—I do not say, my lords, that there was a positive compact; but I remember that, when the motion for a new trial was argued before your lordships, one of the arguments used in support of the motion by the defendants’ counsel was, that a sufficient number of experiments had not then been made. Surely, then, it will not be contended that there was not an inducement to the plaintiffs to make those additional experiments for which they now claim to be allowed.
Mr. Justice Burrough.—There was no contract.
Mr. Sergeant Taddy.—None, my lord; but they challenged us to make the experiments. We have done so; and I submit to your lordships that the verdict being for us, we ought to charge them with the full costs.
Mr. Sergeant Hullock, in support of the rule, contended that the case of Lopez and de Tastet, which had been quoted by his learned brother (Vaughan), was not in point, nor did it bear the interpretation which had been given to it. As to physicians, he had some doubt whether in strict law even they ought to be allowed for loss of time as such, for how was the rule of expenses to be settled? One physician whose practice was extensive, might charge fifty guineas a day, while another might be satisfied to go to Guildhall for five; so that there could be no settled rule. He thought also, though he did not at all mean it invidiously, that the plaintiffs need not have sent to the great distance they had done for witnesses, while they could have got others of equal skill nearer home. If the principle were to be admitted, a man might send to Calcutta for witnesses for scientific purposes, and charge the expenses of the voyage here and back. At the same time he did not mean to object to Dr. Thomson, who he had no doubt was an extremely clever man. The learned Sergeant then went through various items in the bill, several of which, he contended, his clients ought not to be called upon to pay. There was one item of 205l. for a model of the premises. Why, if, as had been suggested, they had built a model of exactly the same size as the original, they might as well charge the price of it, as 250l. for a model. There was another item of 213l. for loss of time, trouble, and expenses, in making experiments, to S. Parkes, esq. Of this the prothonotary had deducted 99l., but then it was not stated what sum was for loss of time, what for the trouble, and what for the expenses. It was the same with the charges to several other gentlemen. Now he objected to any thing being allowed for loss of time, and in that case he was satisfied the case ought to be reviewed. With respect to the costs of the experiments, he apprehended that the best answer had been given by the court. In no case that he heard of before this were they charged.
The Chief Justice asked what was the rule in patent cases.
The Prothonotary said that in all such cases a reasonable sum was allowed.