case or question has been argued and determined, after which a general verdict is to be entered for the prevailing party. (a) CHAP. IV. OF THE POSTEA. ment. In all the Courts it seems that a motion for a new trial ought Motions in arto be made before that in arrest of judgment, (b) because it is rest of judgimportant to keep the various steps in a cause distinct; and when a motion is made in arrest of judgment, it is thereby admitted that there is a verdict to which no objection can be made, and the usual and proper course is, where a rule nisi for a new trial is moved for, to apply at the same time for leave to move in arrest of judgment, if there be any objection apparent on the record. (c) In the Exchequer also the rule nisi for a new trial, or in arrest of judgment, may be obtained in the alternative. (d) for. The motion in arrest of judgment must formerly have been Time of motion made within the four days given by the rule for judgment, though in K. B. it might be made at any time before judgment had been signed. (e) But now, by Reg. Gen. Hil. Term, 2 W. IV. reg. 65, "No motion in arrest of judgment, or for judgment non obstante veredicto, shall be allowed after the expiration of four days from the time of trial, if there are so many days in term, nor in any case after the expiration of the term, provided the jury process be returnable in the same term. (ƒ) (a) T. Chit. Forms, vol. 1, 384. (b) Weston v. Foster, 2 Bing. N. C. 701, 3 Scott, 165, S. C. (c) Per Bayley, J. Philpot v. Page, 4 Bar. & Cress. 161; 1 Tyr. 225. (d) Dax Prac. 85; Price Prac. 329. (f) And see rule and note, Jervis CHAPTER V. OF COSTS AND FINAL JUDGMENTS, AND DOCKETING SAME. CHAP. V. OF COSTS, &C. As regards the recovery of costs by a successful plaintiff or defendant, there seems to be a natural principle of justice that 1. Observations ought universally to prevail, viz. that if a person commit an instatutes relating jury or resist a just claim, and refuse to make compensation, as to costs and to the same. and thereby compels the party injured to resort to a proper Court of justice, by which Costs are incurred, the wrong-doer ought to be compellable not only to make compensation for the principal injury, but also to pay the costs and expenses necessarily incurred in thus seeking redress, so as to completely indemnify the party injured from all the consequences of the wrongful act. In justice, indeed, a plaintiff ought to have compensation even for the trouble, anxiety, and loss of time he has incurred in conducting his suit. So with respect to defendants, if it turn out that the plaintiff's suit or proceeding was unfounded, it is but just that the plaintiff should defray the reasonable costs the defendant has expended in resisting the unfounded claim. (a) It would seem also that the unsuccessful party ought to bear a just proportion, if not the whole, of the expense of holding the Court in which the different stages of the action or proceeding have been conducted, and of the jury and the employment of proper officers to carry the sentence of the law into execution, rather than the same should be defrayed by the public. Poundage, being a remuneration payable to the sheriff for executing a writ of execution, is an expense that ought also to be paid by the defendant. CHAP. V. OF COSTS, &c. But at common law, contrary to this principle, no Costs were recoverable by a plaintiff or defendant, and the present power of recovering them entirely depends on the terms of certain statutes which at first were very limited in their operation. (b) The statute of Gloucester, 6 Ed. 1, c. 1, sect. 2, first gave costs to plaintiffs; (c) and the statute Marleberge, 52 Hen. 3, c. 6, to defendants. (d) Those enactments were followed by others. (e) But it having been found that litigious persons very Limits and refrequently brought actions in the Superior Courts for very strictions on the recovery of trifling causes of action, which ought to have been sued for in costs. an inferior or less expensive Court, or not at all, the legislature therefore considered it necessary to interfere and to restrain actions in the superior Courts for trifling demands by depriving the plaintiff of eosts, unless under certain circumstances certified by the superintending judge. Thus the 43 Eliz. c. 6, 22 & 23 Car. 2, c. 9, and other acts, deprived the plaintiff of more costs than damages, unless he recovered damages to the amount of forty shillings or upwards, or the judge certified as required by those or some other act; (f) and it was even in the discretion of the judge to certify for full costs, notwithstanding the evidence had clearly established that a trespass had been committed wilfully and maliciously; (g) so that if the judge who tried the cause disapproved of the action, he would refuse to certify, and thereby deprive the plaintiff of his full costs. law of costs. The statutes and decisions relative to costs have become so Necessity for complex and occasionally so inconvenient in practice, that a improving the consolidating and ameliorating act has long been called for. The subject has been so very perspicuously discussed in Mr. Tidd's Practice, and in other works, that it would be redundant and repetition here to enlarge on the subject. (h) ment abolished, and how soon By the ancient practice it was in many cases necessary, 2. Rule for judg before signing judgment, to give the opponent notice of the intended proceeding, so that he might prepare to take proper may sign judgmeasures to prevent such judgment, and the execution thereon, (b) 2 Inst. 288; Turner v. Gallilee, Hardress, 12; Tidd, 9 ed. 945, 976; 2 Archbold K. B. by Thomas Chitty, 5 ed. 996. (c) Tidd, 945; 1 Chit. Col. Stat. 215. (d) Tidd, 976. (e) Ante, 18 to 28. (ƒ) Tidd, 9th ed. 945 to 993; and Tidd's New Prac. 549 to 565. (g) Good v. Watkins, 3 East, 495, acc.; R. v. Chadderton, 5 T. R. 273, contra. (h) See Tidd's Prac. 9th ed. 945 to 993; Tidd's New Prac. 549 to 565; Archbold's Prac. by T. Chitty, vol. ii. 996 to 1022; Hullock on Costs, per tot. (i) 2 Bar. & Adol. 383; 8 Bing. 297; 2 Cromp. & Jerv. 186; Tidd, 903, n. (l). ment. (i) CHAP. V. as by motion in arrest of judgment, &c. But now, by Reg. Gen. OF COSTS, &C. Hil. Term, 2 W. 4, reg. 67, extending to all the Courts, it was ordered," that after the return of a writ of inquiry judgment may be signed at the expiration of four days from such return, and after a verdict or nonsuit on the day after the appearance day or the return of the distringas or habeas corpora, without any rule for judgment.” (k) 3. Of taxing costs and signing judgment. (n) 4. Of proceed It is not compulsory on the plaintiff, or the party entitled to sign judgment, whether the plaintiff or the defendant, to do so immediately, for he may postpone that proceeding as long as he pleases. (1) And however great the delay, it is not necessary to give a term's notice previous to signing the judgment where four terms or more have elapsed since the trial, for the rule requiring a term's notice applies only to cases where the matter is still in controversy, and where the plaintiff's neglect to proceed in the cause has occurred before verdict. (m) The trial of the action and delivery or pronouncing of the verdict by the jury are in general the last actual proceedings in Court, or even before a judge thereof, unless in the instance of motions for new trials and some other proceedings which occasionally take place. When the plaintiff has obtained a verdict (except it be a special verdict to be argued in Court), he will after a short delay be at liberty to tax costs, (i. e. have them ascertained and the precise amount fixed by the proper officer,) and shortly aferwards he may, according to the recently established practice, sign judgment and issue execution. Preparatory to taxing costs, if there have been considerable ing to tax costs, extra costs incurred, it is necessary, in order to obtain an and of preparing the affidavit allowance for the extra expenses, to make an affidavit of increase, stating the facts, and which may be to the effect of the following form, but of course varying according to circum of increased costs, in order to obtain the allowance thereof. stances. Affidavit of in- In the King's Bench [or " C. P.," or " Exchequer of Pleas."] creased costs in a town cause, tried by a com mon jury. (0) A. A., of. Between A. B., plaintiff, and C. D., defendant. , gent., agent for the above-named plaintiff, and A. P., of in the county of -, gent., attorney for the above-named plaintiff, severally make oath and say: And first this deponent A. A. for himself saith, that the above cause was set down to be heard, and notice of trial given for the (k) See Reg. Gen. Hil. T. 2 W. 4, (1) 1 Chitty's Archb. 5 cd, 395. (n) Tidd, 9th edit., 930; Hil. T. 2 W. 4, reg. 60. (0) See the forms in T. Chitty's Forms, 192, &c. Term, 183-, and that the same was from time to CHAP. V. sittings in time made a remanet. That the said cause was in the paper and ready for OF COSTS, &c. Term last past, in and for the trial at the adjourned sittings after of Guildhall of the City of London, [if the cause was a special jury one, state miles; that of the said J. M. is distant from London day of the last, and that the above-mentioned cause was second in the paper of that day. That in consequence of the probability of the cause being called on early in the morning of the said —— day of· it was necessary and expedient for all the above-mentioned witnesses to be in London on day of and they were requested by letter to be there accordingly, And this deponent, P. A., for himself saith, that a short time before the cause would have been tried (and after the witnesses were subpoenaed and every preparation for trial made), viz. on the evening of the day of the same month of he was served with a copy of a summons by the defendant's attornies, to show cause why the defendant should not be at liberty to withdraw his plea pleaded, and suffer judgment to go by default for £—, with interest, as therein mentioned. That this defendant did accordingly, on the next day, viz. the day of the said month of attend before the Honourable Mr. Justice who ordered that he, the said defendant, should be at liberty to withdraw his pleas, and that judgment should go against him by default. And this deponent, P. A., for himself saith, that immediately upon such order being made, he did write letters, and sent them by the next post to the said several witnesses above subpœnaed, for the purpose of preventing their attendance, and requesting them not to attend upon such subpœnas, but that such letters did not reach their destination in time to prevent either of the said witnesses attending. And this deponent further saith, that he had no means of preventing them so attending. That immediately after the above order was made, and on the arrival of the said witnesses, T. W., R. C., and M. A., he, this deponent, communicated to them that their services would be dispensed with, and desired them, with the other witnesses, J.M. and J. J., |