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day. The identity, therefore, of costs and charges with expenses and damages seems not to admit of doubt.
In the law of Scotland, the term “costs" does not appear, and expenses is the word used to designate the charges incurred in legal proceedings, which are awarded only in the discretion of the court, but are generally given to the successful party. By the Civil Code of India the court has power to award and apportion costs as it may deem proper; and it is declared, in the section given in the foot-note, that the whole of the expenses necessarily incurred, including the fees of pleaders and counsel, are included under the name of costs.2
How it happened that, from the earliest times, costs have been in name allowed in this country, and yet that the principal part of the charges have not been included in the amount awarded, it is more difficult to learn. In Massachusetts, several province laws directed, “ That attourneys' fees to be allowed at the Superiour Court of Judicature shall be twelve shillings, and at the Inferiour Court, ten shillings, and no more; and but one attourney to be paid for in any case.” 3 By other statutes it is provided : " And no person shall entertain more than two of the sworn allow'd attourneys-at-law, that the adverse party may have liberty to retain others of them to assist him, upon his tender of the
would proceed thus: “And they assess the damages of the said R. and B. on occasion of the non-performance of the said promise and undertaking, besides their costs and charges by them about their suit in that behalf expended, to 301. 11s. 2d., and for those costs and charges to 40s.” The court afterwards by its proper officer would tax the plaintiffs' costs above the 40s., and in the judgment they would appear as an increase of the damages assessed by the jury, as follows: Therefore it is considered that the said R. and B. recover against the said J. their said damages to 321. 11s. 2d. by the said jurors in form aforesaid assessed, and also 51. by the court here awarded of increase to the said R. and B. at their request for their said costs and charges, which said damages in the whole amount to 371. 11s. 2d.” Peacock v. Bell, 1 Saund. 72; 3 BI. Com. App. II., 4. For the forms now in use, see Chitty's Forms, 249, 264.
1 Bell's Dict. (Law of Scotland) 366; 2 Shand Pr. 1026 ; 1 Shand. Pr. 342.
2 Section 188 of Act VIII. of 1859 is as follows: “ Under the denomination of costs are included the whole of the expenses necessarily incurred by either party on account of the suit, and in enforcing the decree passed therein, such as the expense of stamps, of summoning the defendants and witnesses, and of other processes, or of procuring copies of documents, fees of pleaders, charges of witnesses, and
expenses of commissioners either in taking evidence or in local investigations or in investigations into accounts.” The word "pleader,” as used in this act, includes the words “ counsel ” and “ advocate.” Section 41 of Act XXIII. of 1861.
8 1694–5, c. 18, s. 3; &c.
establish'd fee, which they may not refuse."1 Perhaps the legislature considered that it had fixed a sum which was sufficient compensation for the attorney, and that where a party chose to pay a larger amount, it was not reasonable that the adverse party should be saddled with such unnecessary costs, if he were cast in the action. The continuance of the practice may have been assisted by the impression that any addition to the costs awarded was only an increase of the lawyers' fees, without corresponding benefit to their clients, and by a shrewd jealousy and distrust of the profession. At all events the exact amount to be allowed for attorneys and counsel (which is about five dollars for each term of court while the cause is pending) and other allowances, are now fixed in Massachusetts by statute, without regard to the actual expenses incurred; and the practice in this respect is the same in the courts of the United States. The law, however, has been evaded in certain proceedings in equity where there is a fund in court or under its control; and by this means costs larger than are authorized by law, although insufficient for the reasonable charges of the suit, are sometimes awarded under the name of " costs as between solicitor and client."
If it is not right or expedient that costs should be allowed, the present practice ought not to exist, and parties should pay their own costs in name as well as in fact. But, if they are to be awarded at all, it should be done in such a manner that the party recovering them may receive as nearly as practicable the sum which he has been obliged to expend. Courts of justice give damages as compensation for a wrong; but the remedy complete, if they do not include the necessary expense of the litigation, and if the cost of obtaining justice is cast upon the party who seeks it.
Whatever objections may be alleged against giving costs generally, they have less force in respect of appeals in the Supreme Court, while the reasons in favor of it have greater strength than in other matters. The cases there are comparatively few, and to ascertain the amount of the necessary expenses would be easy. At the same time the injury done by an unnecessary appeal to a party who has been successful in the court below, is often very great, and it is a hardship that, upon the affirmance of the judgment, he must pay the additional expense of the appeal
1 1708-9, c. 3, s. 2; &c.
which was caused by no fault of his own. The prospect of having to make compensation in this respect would do much to discourage appeals where there is no occasion for them, and where there is no reasonable prospect of success. The mere chance that the judgment of a lower court may be reversed is not a sufficient ground to warrant an appeal to a higher tribunal ; but at present it is the only inducement in too many cases, while there is no corresponding restraint. The worst result which can befall the appellant is that he will have to pay his own costs; at the same time he can console himself with the reflection that, if he has gained nothing himself, his adversary has been put to an expense equally great. The application of the rule of compensation to the acts of parties in judicial proceedings would save the courts, as well as the parties, from much useless litigation. No one court can determine all the controversies which arise in a large country; and any system of administering justice must be founded on the supposition that a large proportion of causes will be decided finally in the lower courts.
It may be asked, Would not the chance of recovering costs, if the appeal is successful, be an additional motive to appeal in some cases, as well as a restraint in others? Nearly all of the improvements which of late years have been made in procedure, have been in the extension of equitable rules and doctrines; and it is probable that any provision in respect of costs would place them entirely in the discretion of the court, and also that such discretion would be exercised in a similar manner to that in which it is used elsewhere. The established rule of the House of Lords and of the Court of Chancery is that when an appeal is successful, and the decree below is reversed, costs are not given to the appellant except under special circumstances; but, when the decree is affirmed on appeal, costs are generally given to the respondent. The reason for allowing costs to the respondent when the decree is affirmed is plain; that for refusing them to a successful appellant is said to be that it would be making the respondent pay the costs occasioned by the mistake of the court below; and, although it may be hard that the appellant should have to bear his own expenses, it would be still harder if
1 Mackersy v. Ramsays, 9 Cl. & F. 851; Denny v. Hancock, L. R. 6 Ch. 138; Stewart v. Menzies, 8 Cl. & F. 319; Macqueen's H. L. Practice, 267, 269.
they were imposed on the party who came only to defend and sustain a decree in his favor. The court of appeal therefore puts itself in the place of the court below, and makes the decree and awards only the costs which the appellant ought to have had there. What is more satisfactory than this reasoning is the consideration that the rule removes the inducement to appeal merely for the sake of recovering costs.
We make these suggestions in the hope that the profession will take up the question of reform in earnest, so that some comprehensive measure may be adopted, and that the subject may not be left to be dealt with by temporary legislation.
LOBBYING AT WASHINGTON.
The Supreme Court of the United States has struck a heavy blow at the system of lobbying for the passage of private bills through Congress. At the last October term John W. Burke, executor of the will of Nicholas P. Trist, deceased, entered an appeal from a decree in equity made by the Supreme Court of the District of Columbia on the petition of Linus M. Child, the personal representative of his father, the late Linus Child, with whom the son had been in partnership. Congress had passed an act for the relief of Trist, who was described therein as the
negotiator of the Treaty of Guadaloupe Hidalgo," directing the payment to him of two separate sums of money, amounting in the aggregate to $14,559.90. The younger Child claimed from Trist one quarter part of this sum, on the ground that an agreement had been made with his father (who had prepared the petition in the case, but who had died before the bill was passed) that he should be thus compensated, in case of the passage of the bill, for his services in obtaining its favorable consideration by Congress; if the bill had not been passed, nothing would have been due. Trist refused to pay, on the alleged ground that both father and son had grossly neglected the proper prosecution of the claim, and that it had been necessary to make use largely of the aid of other persons. Upon this refusal Child applied to the officers of the Treasury to suspend the payment of the money, an application which was granted; and then filed his bill in the Supreme Court of the District. That court decreed to him the amount of his claim (one quarter of the sum appropriated by Congress), and enjoined Trist from receiving from the Treasury
any of the money appropriated to him " until he should have paid the lawyer's demand. From this decree the appeal to the Supreme Court was taken ; Mr. Trist having meanwhile died at an age of more than seventy.
Messrs. Durant and Horner were for the appellants; Messrs. B. F. Butler and R. D. Mussey, contra.
The Supreme Court have made thorough work of the case.