CHAP. XXXV.: Of the Costs.

IN former times no one was condemned in the temporal courts of France to the payment of costs Défontaines in his conseil, chap. 22. art. 3. and 8. and Beaumanoir, chap. 35. Institutions, book 1. chap. 90. ^†781. The party cast was sufficiently punished by pecuniary fines to the lord and his peers. From the manner of proceeding by judicial combat, it followed that the party condemned and deprived of life and fortune, was punished as much as he could be: and in the other cases of the judicial combat, there were fines sometimes fixed and sometimes dependent on the disposition of the lord, which were sufficient to make people dread the consequences of suits. The same may be said of causes that were not decided by combat. As the lord had the chief profits, so he was also at the chief expence, either to assemble his peers, or to enable them to proceed to judgment. Besides, as

disputes were generally determined on the spot, and without that infinite multitude of writings which afterwards followed, there was no necessity of allowing costs to the parties.

The custom of appeals naturally introduced that of giving costs. Thus Défontaines Chap. 22. art. 8. ^†782 says, that when they appealed by written law, that is when they followed the new laws of St. Lewis, they gave costs; but that in the usual custom, which did not permit them to appeal without falsifying the judgment, no costs were allowed. They obtained only a fine, and the possession for a year and a day of the thing contested, if the cause was remanded to the lord.

But when the number of appeals increased from the new facility of appealing At present when they are so inclined to appeal, says Boutillier, Somme rurale, book. i. tit. 3. page 16. ^†783; when by the frequent usage of those appeals from one court to another, the parties were continually removed from the place of their residence; when the new method of proceeding multiplied and perpetuated the suits; when the art of eluding the very justest demands was refined; when the parties at law knew how to fly only in order to be followed; when actions proved destructive, and pleas easy; when the arguments were lost in whole volumes of writings; when the kingdom was filled with members of the law, who were strangers to justice; when knavery found encouragement from mean practitioners, though discountenanced by the law; then it was necessary to deter litigious people by the fear of costs. They were obliged to pay costs for the judgment, and for the means they had employed to elude it. Charles the Fair made a general ordinance on that subject In the year 1324. ^†784.