Page:Federal Reporter, 1st Series, Volume 3.djvu/531

 524, ; FBDEBAIi .EEPORTBB. �Buffered by his own veasel, then he Bhould file a cross libel. Damages for injuries to his own vessel cannot be decreed to him under an answer to the original libel, as the answer does not constitute a proper basis for such a deeree in favor of the respondent ; consequently, whenever he desires to prefer such a claim, he should ûle an answer to the original libel, and in- stitute a cross-action to recover the damage for the injuries Bustained by his own vessel," Id. 384. Further the opinion proceeds : "Beyond doubt, the final deeree dismissing the libel in the cross suit determines that the libellant in that suit is not entitled to recover aiSrmative damages for any injuries suffered by his vessel in the collision, but it does not dispose of the issues of law or f act involved in the original suit. " Id. 384. �, The expression "affirmative damages" is several times used in the opinion in considering what was the statm of respondent with reference tp the original action after the cross libel h^d been dismissed, but I understand the court, in incidentally discussing . the effect of filing a cross libel, to be speaking of a case where the party is seeking not simply to reduçe or extinguish the damages which the libellant would be otherwise jentitled to recover, but to recover affirmative damages; that is, damages which may be in excess of any amount which the libellant would be entitled to claim. As the court understood counsel upon the argument, no reason -was urged why, the prineiple of recoupment might not be recognized and applied in a case like the present, except that such application was wholly unsanctioned by authority. Herein I think counsel is mistaken. In my examination of the question I bave come upon some cases, not referred to by counsel, which very closely bear upon the identical ques- tion here involved, and in the very aspect in which it is here presented. �In this connection the case of The Seringapatam, 3 Wm. Eob. 38, is worthy of attention. The facts of the case are stated by Dr. Lushington in the opinion of the court, and are as foUows : " The question in this case arises under some- what peeuliar circumstanees. Upon the first of May, 1846, ����