452 COSTS At common law, costs were not given either to plaintiff or defendant, although the damages given to a successful plaintiff would include the expense he had been put to in taking proceedings. The defendant in a wrongful action could not even recover his costs thus indirectly, and the indirect costs given to a plaintiff under the name of damages were often inadequate and uncertain. Costs were first given under the Statute of Gloucester (6 Edward I. c.l), which enacts that "the demandant shall recover damages in an assize of novel disseisin and in writs of mort d ancestor, cosinage, aiel, anu beziel, and further that the ilemandant may recover against the tenant the costs of his /rit purchased together with the damages above said. And t his Act shall hold in all cases when the party is to recover i Jamages." The words " costs of his writ " were extended t ) mean all the legal costs in the suit. The clause gives costs, wherever damages are recovered, and no matter what the amount of the damages may be. Costs were first given t > a defendant by the Statute of Marlebridge in a case relating to wardship in chivalry (52 Henry III. c. G) ; but costs were not given generally to successful defendants until the 23 Henry VIII. c. 15, which provides that " il in the actions therein mentioned the plaintiff after appearance of the defendant be nonsuited, or any verdict happen to pass by lawful trial against the plaintiff, the defendant shall have judgment to recover his cocts against the plaintiff, to be assessed and taxed at the discretion of the court, and shall have such process and execution for the recovery and paying his costs against the plaintiff, as the plaintiff should or might have had against the defendant, in case the judg ment had been given for the plaintiff." By the 4 James I. c. 3, this " good and profitable law" was extended to other actions not originally specified, although within the mis chief of the Act, EO that in any action wherein the plaintiff might have costs if judgment were given for him, the defendant if successful should have costs against the plaintiff. The policy of these enactments is expressed to be tho discouragement of frivolous and unjust suits. This policy was carried out by other and later Acts. The 21 James I. c. 16 6 (the statute for the limitation of actions) orders that if the plaintiff in an action of slander recover less than 40s. damages, the plaintiff shall be allowed no more as costs than he gets cs damages. By the 43 Elizabeth c. 6 it had been enacted that in any personal action not being for any title or interest in land, nor con cerning the freehold or inheritance of lands nor for battery, where the damages shall not amount to 40s. no more costs than damages shall be allowed. By 3 and 4 Viet. c. 24 (Lord Denman s Act), where the plaintiff in an action of tort recovers less than 40s., he shall not be allowed costs unless the judge certifies that the action wag really brought to try a right besides the right to recover damages, or that the injury was wilful or malicious. Not to speak of other enactments on this subject, the County Court Acts, 1867, laid down the following rule : If in any action in any of the superior courts the plaintiff shall recover a sum not exceeding 20 if the action is rounded on contract, or 10 if founded on tort, whether by verdict, judgment by default, or on demurrer, or otherwise, he shall not be en titled to any costs of suit unless the judge certify on the record that there was sufficient reason "for bringing such action in such superior court, or unless the court or a judge at chambers shall by rule or order allow such costs. Costs in equity were subject to the discretion of the court, but as a general rule the maxim of the civil law, rictus victori in expensis condemnatus est, was followed. The successful party has a prima facie claim to costs, but the court might, on sufficient cause shown, not only deprive him of his costs, but even in some rare cases order him to pay the costs of his unsuccessful opponent. There was a class of cases in which the court generally gave costs to parties sustaining a certain character, whatever might be- the result of the suit (e.g., heirs-at-law, mortgagees, &c). A defendant would have been exempted from costs if he had made such a tender of payment as would have rendered a suit unnecessary such tender to be full and unconditional, and to include costs already incurred, as well as the principal claim. The following rule as to costs is laid down in the Rules of Court appended to Judicature Act, 1875, order 55 : " Subject to the provisions of the Act the costs of and incident to all proceedings in the High Court shall be in the discretion of the court ; but nothing herein contained shall deprive a trustee, mortgagee, or other person of any right to costs out of a particular estate or fund to which ho would be entitled under the rules hitherto acted upon in courts of equity : provided that, where any action or issue ic tried by a jury, the cost shall follow the event, unless upon application made at the trial, for good cause shown, the judge before whom such action or issue is tried, or the court, shall otherwise order." The provisions of the County Court Act, 18G7, above referred to, still hold good, as well as those of Lord Denman s Act, depriving a plaintiff of costs vhen he recovers less than 40s. on an action of tort, unless the judge certifies ; and of 21 James I. c. 16, making costs no more than damages in actions of slander where damages are assessed under 40s. In the taxation of costs certain principles are observed which may be briefly adverted to. Thus in some cases costs are to be taxed as " between party and party," in others as between solicitor and client. " No definite rules can be laid down with respect to the difference between the costs to be allowed upon one principle of taxation and those allowed upon the other. In general, however, in taxations as between party and party, only those charges will be allowed which are strictly necessary for the purposes of the prosecution of the litigation, or are contained in the table of fees annexed to the general orders and regulations of the court ; while in taxations as between solicitor and client the party will be allowed as many of the charges which he would have been compelled to pay his own solicitor, as being costs of suits, as fair justice to the other party will permit " (Daniel s Chancery Practice), Costs are taxed between party and party unless otherwise specially directed. Costs of interlocutory motions made in the course of a litigation are sometimes said to be " costs in the cause," that is, they abide the result of the principal issue. A party succeeding in an interlocutory motion, and paying the costs therein made costs on the cause, would recover the amount of such costs if he had a judgment for costs on the result of the whole trial, but not otherwise. When one of the parties makes default, as in failing to proceed to trial according to notice at the time appointed, he becomes liable to the other for what are called the "costs of the day." Regulations as to costs of proceedings in the Supreme Court of Judicature will be found in order vi. of the Addi tional Rules of Court under the Judicature Act, 1875. Two scales of fees which may be charged by solicitors are printed the lower to be the general charge for matters assigned to the different divisions of the court (except causes relating to sums over 1000 in the Chancery division) and actions for special injunctions. But a court or judge may in any case direct the fees in either scale to be allowed " to all or either or any of the parties and as to all or any part of the costs." The court of appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may
seem just (Rules of the Judicature Act, 1875). (E. R.)