bound, as between the parties, from the date or teste of the writ of execution-and as against purchasers, from the time of actual seizure under the execution (y).

Moreover, by 1 & 2 Vict. c. 110, s. 17, it was provided, that every judgment debt shall carry interest, at the rate of 41. per cent. per annum, from the time of entering up the judgment, until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment (z).

Thus much for judgments, to which (as the general rule) costs are a necessary appendage;-it being now as well the maxim of ours, as of the civil law, that "victus victori in expensis condemnandus est," though the common law did not allow any (a). Costs are accordingly taxed (as already remarked) at the same time that the judgment is signed, and form part of its aggregate amount (b). But the law respecting them deserves a more particular attention than could conveniently have been bestowed upon it when the subject was before touched upon, and we therefore resume its consideration in this place.

The first statute which directed that costs should be given to the plaintiff in an action at law, was the Statute

(y) The law on this subject is more particularly stated, sup. vol. II. pp. 51, 52.

(z) See Newton v. Grand Junction Railway Company, 16 Mce. & W. 139.

(a) Cod. 3, 1, 13. The chief exceptions are those where the action should have been brought in a county court (as to which vide sup. p. 287). And also those in which the court withholds costs in the exercise of its discretion under 36 & 37 Vict. c. 66, sched. r. 47; which directs that, subject to the provisions of that Act, the costs of and incident

to all proceedings in the High Court shall be in the discretion of the court.

(b) There are many cases of vexatious proceeding, in which the legislature had formerly provided, that the party in fault should be punished by the payment to his adversary of double, or (sometimes) treble costs. But by 5 & 6 Vict. c. 97, all such provisions were repealed; and it was enacted, that the adversary should be entitled only to a full and reasonable indemnity, to be taxed by the proper officer.

of Gloucester, 6 Edw. I. c. 1 (c). Prior to this Act, indeed, the costs of the proceedings were always considered and included in the amount of damages, in those actions in which damages were given; but because those damages were frequently inadequate to the plaintiff's expenses, the Statute of Gloucester ordered costs eo nomine to be also added. But as the general rule no costs were allowed the defendant in an action at law, in any shape, till the statutes 23 Hen. VIII. c. 15; 8 Eliz. c. 2; 4 Jac. I. c. 3; 8 & 9 Will. III. c. 11; and 4 Ann. c. 16; and these very properly gave the defendant, if he prevailed, the same costs as the plaintiff would have had in case he had succeeded. But even after these enactments, there still remained several cases in which the law was defective on this subject, both as regards the plaintiff and the defendant. These defects, however, were afterwards remedied by a variety of provisions, and chiefly by the statutes 9 Ann. c. 20; 43 Geo. III. c. 46, s. 4; 1 Will. IV. c. 21; 3 & 4 Will. IV. c. 42, ss. 31-34; 4 & 5 Will. IV. c. 39; 15 & 16 Vict. c. 76, ss. 81, 146, 223; 17 & 18 Vict. c. 125, ss. 42, 44, 57, 67, 93; and 23 & 24 Vict. c. 126, ss. 11, 27, 32. By one of these, it was provided that if a plaintiff instead of taking out execution upon a judgment he has recovered shall bring an action thereon, he shall have no costs of such unless the court or a judge shall otherwise order (d). And it was also (among other matters) laid down under these enactments, that though the party who succeeds substantially, should have the general costs of the action; yet his adversary succeeding on any particular issue, whether in law or fact, should be entitled to the costs of the issue on which he is victorious (e).

(c) 3 Bl. Com. 399. As to the history of costs, see Burgess v. Langley, 5 Man. & G. 723, in notis; Partridge v. Gardner, 4 Exch. 303; Howell v. Rodbard, ibid. 309; Bentley v. Dawes, 10 Exch. 347; Cannon, dem., Rimington, ten., 12 C. B.

514.

(d) 43 Geo. 3, c. 46, s. 4. See Adam v. Ready, 6 H. & N. 261.

(e) See, in particular, 15 & 16 Vict. c. 76, s. 81. By 3 & 4 Will. 4, c. 42, s. 31, which for the first time provided that executors and admi

Moreover, by "The County Courts Act, 1867," in order to prevent the practice of suing in the superior court in matters of small amount, it was provided, that a plaintiff who resorts thereto and recovers a sum not exceeding 201. in an action founded on a contract,-or no more than 107. if founded on tort,-shall have no costs of suit, unless the court or a judge will certify on the record that there was sufficient reason for his taking that course (e). It may be further observed that no costs are allowed in a penal action to a plaintiff suing as a common informer, unless they are expressly given by the statute on which he sues; for, as the action itself creates the right, he has no claim to damages; and by the general rule of law, where there are no damages, there can be no costs (ƒ).

With respect to pauper suitors, that is, such as will swear themselves not worth 5l. in the world, except their wearing apparel and the matter in question in the cause (g),—it is to be observed, that they are by statute 11 Hen. VII. c. 12, and 23 Hen. VIII. c. 15, exempted from the payment of court fees; and they are entitled to have counsel and solicitor assigned to them by the court without fee; and are moreover excused from paying costs when unsuccessful, though it is said they shall suffer other punishment at the discretion of the judges (h). And

nistrators, when plaintiffs, should be liable to costs, power is given to the court or a judge to exempt them from such liability by special order in any particular case. (See Redmayne v. Moon, 25 L. J., Q. B. 311.)

(e) 30 & 31 Vict. c. 142, s. 5. See Marshall v. Martin, Law Rep., Q. B. 239.

(f) See College of Physicians v. Harrison, 9 B. & C. 524.

(g) See 3 Bl. Com. 400.

(h) Bl. Com. ubi sup. These Acts have no application to the

case of a defendant, whose poverty, however extreme, will not avail him in the matter of costs. Blackstone says (vol. iii. p. 400) that it was formerly usual to give pauper plaintiffs, if non-suited, their election, either to be whipped or pay their costs. But in modern practice no instance of the award of any punishment, in such cases, has occurred. As to suing in formâ pauperis, see Pratt v. Delarue, 10 Mee. & W. 512; Doe v. Owens, ibid. 514; Hall v. Ive, 7 Man. & G. 1001; Reg. Gen. Hil. T. 1853, rr. 121, 122.

a person thus suing in formâ pauperis may recover costs, though he pays none; for the counsel and clerks are bound to give their labour to him, but not to his antagonists (i).

It is to be observed, that in the Court of Chancery the costs to be given to either party have never been held to be a point of right; but merely discretionary according to the circumstances of the case, as they appear more or less favourable to the party vanquished (k). And it forms one of the rules of procedure annexed to the Judicature Act, 1873, that, subject to the provisions of that Act, the costs of and incident to all proceedings in the High Court thereby established shall be in the discretion of the court (1); and no order as to costs left by law to the discretion of the court shall, except by leave of the court or judge making the order, be subject to any appeal (m).

After judgment,-unless the party condemned takes some course to be relieved from its effect, he will be liable to execution (n). But he may obtain such relief, where there is ground for it, by—

V. Appeal. Proceedings by way of appeal have been substituted by the Judicature Act, 1873, for the proceed

(i) 3 Bl. Com. 401.

(k) 3 Bl. Com. 452; 17 Ric. 2, c. 6; 15 Hen. 6, c. 4. See Seton on Decrees, p. 90, 3rd ed.

(1) 36 & 37 Vict. c. 66, Sched., r. 47. But this is not to deprive a trustee, mortgagee or other person of any right to costs out of a particular estate or fund "to which he would be entitled according to the rules hitherto acted upon in Courts of equity." (Ibid.) (m) Sect. 49.

(n) Blackstone (vol. iii. pp. 402, 405) speaks of a writ of attaint, a writ of deceit, and a writ of audita querela, among the methods of relief from a judgment. But the

VOL. III.

two first of these are now abolished, and the last may be said to be nearly obsolete. The writ of attaint we have before had occasion to notice, vide sup. p. 561, n. (k). The writ of deceit was an action brought in the Common Pleas to reverse a judgment obtained in a real action, by fraud or collusion between the parties, to the prejudice of a right of a third person. It was abolished by 3 & 4 Will. 4, c. 27, s. 36. The audita querela (as to the nature of which, see also Holmes v. Pemberton, 1 E. & E. 367), is a writ that lies for a defendant against whom judgment has been given, but who is entitled to

PP

ings in error which have been hitherto in use (o). Proceedings by way of error were always for a supposed mistake in some court of record; for to amend errors in a court not of record, a writ of false judgment lay (p). Error was either in some matter of fact or in some matter of law. The errors in fact which gave rise to a proceeding of this kind were not numerous, but among them were the following:-that the defendant, being an infant, appeared by attorney, and not by guardian; or that the plaintiff or defendant was a married woman when the action commenced (g). But the most usual species of the proceeding by way of error, was that which was founded upon some supposed mistake of law, apparent on the face of the record-such as might have formed a sufficient ground, at the proper time, for a demurrer, a motion in arrest of judgment, or a motion for a judgment non obstante veredicto (r).

Formerly the suitors were much perplexed by proceedings in error instituted upon very slight and trivial grounds, as mis-spellings, and other mistakes of the clerks.

be relieved upon some matter of discharge which has happened since the judgment; as if the plaintiff has given a general release, or if the defendant has since paid the debt. It is a writ stating that the complaint of the defendant has been heard, audita querela defendentis; setting forth the matter of complaint, and enjoining the court to call the parties before them, and cause justice to be done. But the indulgence now shown by the courts, in granting relief upon motion, has long since almost superseded the remedy by audita querela. (See 2 Saund. 137 e.)

(0) Proceedings in error used, at one period, to begin by a writ sued out of the common law side of the

Court of Chancery, addressed to the chief justice of the court in which the judgment was given, and commanding him to send a transcript of the record to the Court of Error. But by 15 & 16 Vict. c. 76, s. 148, this writ was in almost every case, (see Arding v. Holmer, 26 L. J., Exch. 72,) dispensed with.

(p) As to the writ of false judgment, see Overton v. Swettenham, 3 Bing. N. C. 786; Crooks v. Longden, 5 Bing. N. C. 410.

(g) As to error in fact, see King v. Jones, Ld. Raym. 1525; Bird v. Pegg, 5 B. & Ald. 418; Irwin v. Grey, Law Rep., 2 App. Cas. 20; Metropolitan Railway Company . Wilson, ib. 6 C. P. 376. () Vide sup. p. 564.