ON THE PROPRIETY OF MAKING A

REMUNERATION TO WITNESSES

IN

CIVIL ACTIONS,

FOR

LOSS OF TIME,

AND OF ALLOWING THE SAME ON THE TAXATION OF COSTS AS BETWEEN PARTY AND PARTY;

WITH SOME

Dbservations

ON THE

PRESENT SYSTEM OF TAXING COSTS.

BY CHARLES FROST,

ATTORNEY AT LAW.

Item, quod sibi debetur, ponitur ad differentiam Criminalium Actionum, quibus non solùm mihi debitum prosequor, sed cuilibet de populo, propter pacem regis et communem utilitatem.-Bracton, Lib. 3. Tit. de Actionibus, c. 1.

LONDON.

CONSIDERATIONS,

&c. &c. &c.

THE spirit of that beautiful precept of the civil code, which enjoins that we should live honestly, hurt no one. and render to every one his own, (a) is infused into our system of jurisprudence, which provides a remedy against every possible infraction of the precept, in order that no one inay commit an injury against the person or property of another without being liable to make satisfaction, according to the nature of the case, to the injured party.

But it is evident that this satisfaction would be incomplete, and in many cases an empty name, if those who are compelled to seek their remedy in Courts of Justice, were not to be relieved from the expenses attendant on the means by which redress is to be obtained.

For these expenses must be taken as part of the injury sustained, and were so considered in Pilfold's case, (b) wherein the Court, in delivering their judgment, gave following definition of the word "damna," or damages:

the

(@) Honestè vivere, alterum non lædere, suum cuique tribuere.—Just. Inst. lib. 1. tit. 1. s. 3.

(b) 10 Rep. 116.

"In its proper and general signification, dicitur a demendo, cum diminutione res deterior fit, and in this sense costs of suit are damages to the plaintiff, for by them "res sua diminuitur."

The principle that the Plaintiff who is compelled to have recourse to law for the recovery of his right, or the defendant who is unjustly impleaded, should be fully indemnified against the expenses of the suit by the losing party, is to be found in the highest legal authorities, and has been recently recognised on several occasions by the present Lord Chief Justice of the Court of King's Bench. 3

And yet the practice of the courts is so far at variance with this acknowledged principle, that the successful party to a suit, must necessarily, according to the present mode of taxing costs, sustain a very considerable loss in the dif

"Costs are a consequence by the statute of Gloucester, of detaining the debt; and are part of the damages. In contemplation of law, the word damages emphatically includes costs."-Per Lord Ellenborough, 9 East, 304. 2 It is an ancient rule in law, that "Ubi damna dantur, victus victori in expensis condemnari debet." The plaintiff's right to be indemnified is laid down by Lord Chief Justice Willes in an observation on the statute of Gloucester, wherein his Lordship has stated, that "the intent of the statute was to reimburse the party injured." 2 Wils. 91.—and the principle of indemnity, so far as it relates to defendants, is clearly deducible from the statutes of Marlbridge and 8th Eliz. c. 2.

The former of these statutes gives to defendants unjustly impleaded “damna sua, et misæ suæ quas fecerint occasione predicti placiti et ipsi actores per misericordiam graviter puniantur;" and the latter awards the same measure of costs by giving to defendants, as against plaintiffs who shall relinquish their proceedings in the progress of an action," their costs, damages, and charges by any means sustained by occasion of any such writs, &c."

3" However desirable it is that the taxed costs should really indemnify the party ultimately found to be in the right, yet it is necessary to keep a check upon the very great expense to which this might lead, and to incur which the interest of unconscientious agents might afford a temptation."-Per Lord Ellenborough, 2 East, 259.

"The plaintiff should be indemnified, and ought not to be a loser by the attendance of a witness."-Per Lord Ellenborough in Atkinson v. Sadler, Trin. Term, 1815. MS.

NO. XIII.

Pam.

VOL. VII.

N

ference between the expenses actually incurred, and that proportion of them which he is entitled to receive upon taxation from the opposite party.

In the earlier practice of our Courts, the plaintiff, if he failed in his action, was amerced pro falso clamore, and the defendant, against whom a verdict was obtained, was in misericordia: and those amerciaments, although in the time of Lord Coke they had grown into disuse, were instituted, as he says, by the wisdom of the law," to deter both demandants and plaintiffs from unjust suits, and tenants and defendants from unjust defences, and were the cause in ancient times of fewer suits." (a)

To check the increase of litigation, especially in cases where the law might be made an instrument of oppression, is highly commendable, and consistent with the soundest policy; but that the multiplication of suits should be prevented by heaping expense upon the successful suitor, and thus depriving him substantially, of the protection from wrongs which the laws of his country hold out to him, is an absolute dereliction from the spirit and intention of our jurisprudence.'

Surely it is more equitable and more reasonable that the increase of suits should be checked by punishing the wrongdoer, than by imposing burthens upon the party who has appealed to justice, and whom the verdict of a jury has found to be in the right.*

(a) 2 Inst. 28.

In Pilford's case two acts of Parliament relative to costs were construed in favor of the plaintiff, of whom it was said, that "always when he recovereth, he is favored in law." 10 Rep. 116.

"The statute 4 Ja. c. 3. contains the following recital touching the statute 23 Hen. 8. c. 15. by which costs are given to defendants in cases of nonsuit; "which law hath been found to be very good and beneficial for the Commonwealth, and thereby many have been discouraged from bringing frivolous and unjust suits, because such parties are to make recompence to the parties unjustly vexed for the said unjust vexations.”

The mode which has for some time past prevailed in the taxation of costs, has, in many instances, completely defeated the ends of justice, and has given rise at different times to complaints which have been urged in very strong language, though upon grounds of far less importance than those at present existing.'

It must therefore excite surprise, that with the exception of the statute of the 43d Geo. 3. cap. 46., the 5th section of which gives to plaintiffs entitled to levy under an execution against the goods of the defendant, "the poundage fees and expenses of the execution, over and above the sum recovered by the judgment," no measure has hitherto been adopted to remove the grounds of complaint.

It

may be observed, that before the passing of this statute, the costs of taking out execution against the goods of the defendant, and of the proceedings thereon, were deducted out of the plaintiff's debt, for which the judgment was given.2

Although this statute has been occasionally called Lord Moira's Act, it is now generally understood, that the public is indebted for the 5th and others of its most beneficial sections to the present Lord Chief Justice of the Court of King's Bench and it is honorable to the consistency of that noble and learned Lord, who has recognized from the Bench the principle of indemnity to the successful party, that he has uniformly countenanced the removal of this most flagrant source of public dissatisfaction and complaint.

See Preface to Boote's Suit at Law, xi. and Preface to the second edition of Palmer's Table of Costs, v. This subject is placed in a ludicrous light by Swift, who represents that Gulliver was enabled to satisfy the king of Brobdingnag on several points in relation to our Courts of Justice, from the circumstance that he had himself been almost ruined by having a Chancery suit decreed in his favor with costs!

2 See Boote's spirited observations upon this inequitable practice, in his Suit at Law, 194.