Detention of the Plaintiff's Right. It was called in Mifericordia, because the Amerciament to be impofed was to be but fmall, and rather less than the Offence, according to Magna Charta, c. 14.

These Amerciaments were then instead of Costs; and though the Ufe is gone, the Term still remains, for where the Plaintiff or Defendant in the Action fails, the Entry of the Judgment is ftill Ideo in Mifericordia, &c. But as this made no Amends to the Plaintiff for the Cofts he had been out of Pocket, the Statute of Gloucefter 6 Ed. 1. c. 1. was made, whereby if any Perfon recovered Damages in a Plea perfonal or mixed, he should have his Cofts. This is faid to be the Original of Cofts de incremento, for then the Damages were found by the Jury; and the Court, instead of Amerciaments, used to tax the moderate Fees of Counsel and Attornies.

Thus it stood for the Plaintiff, until the 43 El. c. 6. whereby, if the Plaintiff did not recover in a perfonal Action (not concerning Freehold nor Afault and Battery) 40 s. he should have no more Cofts than Damages, unlefs, &c. The feveral Statutes relating to Cofts and Damages áre the 6 Ed. 1. c. I. 6 Ed. 2. c 14. 3. H. 7. c. 10. 23 H. 8. c. 15. 8 El. c. 2. 18 El. c. 15. 43 El. c. 6. 4 Ja. 1. c. 3. 7 fa. I. c. 5. 21 Ja. 1. c. 16. 13 Car. 2. c. 2. 22 & 23 Car. 2. c. 9. 5 & 6 W. & M. c. 12. 8 & 9 W. 3. c. 10. 11 & 12 W. 3. c. 9.

4

& 5 Ann. c. 16, &c.

The awarding of Cofts was always difcretionary in the Court, and formerly the Puifne Judge of the Court used to allow the Cofts, and make a special Rule for the Payment of them; upon the Service whereof, and Refufal of

Pay

Payment, an Attachment used to iffue. But now it is become the Courfe of the Courts to refer the taxing of the Cofts to the Secondary and Prothonotaries, and not to make any special Rules for fuch Matters. And thefe Officers have a discretionary Power to allow what is reasonable, and difallow what is not fo; for fuch Costs are only to be allowed as have ne-ceffarily occurred in the Profecution, or where one of the Parties has caused the other to have been at extraordinary Charges. And therefore it has been held that Cofts ought not to be paid for the putting off a Trial, where no Fault was in the Party against whom it was moved. In like Manner, no Cofts fhould be allowed for unreasonable Motions, nor for extraordinary Fees to Counsel, as retaining Fees, &c. nor extraordinary Expences on Witneffes at the Trial, nor paying them beyond what is ufually allowed for their Attendance, &c. but for fuch Expences only as the Party was neceffarily put to in the Profecution of the Suit. And hence arifes the Difference in Colts between Party and Party, and Cofts between the Attorney and his Client.

When the Cofts on the Poftea are taxed, (which is most frequently done on an Affidavit of the increased Cofts) final Judgment is then faid to be figned, and is then ready to be entered up on the Roll.

Df entering up Judgment on the Roll in the King's Bench.

It has been obferved before, that the fecond Placita in the Record for Trial, was a general N 3

Entry

Entry made ufe of to fupply the Continuances of the Venire, even to that Term mentioned in that Placita, (which was the Term of Trial) and ferved to fhew the Court that the Iffue was continued to the last Term. It was likewife a Warrant to the Officer to continue the Venire until then, when he came to enter up the Judgment on the Iffue Roll. And this introduced the general formal Beginning with Poftea Continuato inde Proceffu, in entering up the Judgment, viz.

The Iffue ends with, The fame Day is given to the Parties aforefaid at the fame Place, then they go on with* Afterwards the Procefs thereof being continued between the Parties aforefaid, of the Plea aforesaid, by the Fury aforefaid, being refpited between them before our Lord the King at Westminster, until next after (the Return of the Diftringas) ‡ unless the Juftices of our Lord the King, affigned to take the Alizes in the County aforefaid, fhall first come Day of

on

the

at

R. in the faid County of B. according to the Form of the Statute in fuch Cafe made and provided, † for Default of the furors, because

* Afterwards the Process, &c. that is, the Writ of

Venire.

If the Caufe is tried in Town, it is, Unless the King's right trusty and well-beloved William Lord Mansfield, his Majefty's Chief Justice affigned to hold Pleas before the King bimfelf, fball firft come on the

at

Day of the Guildhall of the City of London, or Weftminster-hall, c. And then alfo And the faid Chief Justice before whom, &c. fent hither bis Record, &c.

For Default of the Jurors, &c. This is only a Recital of Part of the Award of the Distringas, grounded on a suppofed Default of the Jurors not coming on the Venire.

none

none of them did appear, at which Day before our Lord the King at Westminster the aforefaid A. B. comes by the faid R. B. bis Attorney aforefaid; and the faid Juftices of our faid Lord the King, before whom, &c. Jent hither their Record had in thefe Words, to wit, Afterwards, that is to fay, on the || Day and at the Place within contained before

(here comes in the Poftea, verbatim; after which follows the Judgment.) Therefore it is confidered that the faid A. B. recover against the faid C. D. his faid Damages, by the faid Jury in Form aforefaid affeffed; and alfo (the Cofts de incremento) for his faid Cofts and Charges, by the Court of our faid Lord the King now bere adjudged of Increase to the faid A. B. with his Affent, which Dar mages in the whole amount to

And the faid C. in Mercy, &c.

If what is before alledged be confidered, that is, that anciently the Court of King's Bench had fo little to do in Civil Actions, that they had not Business to fit the whole Term, de Die in Diem, but adjourned from one Day to another, in the fame Term, and gave a Day to the Parties to be prefent when they did fit. If this, I fay, be confidered, there will fome Reason appear for the Ufe of a fecond Placita, though the Caufe was tried the fame Term that the Iffue was joined; and likewife for their beginning the Entry of the Judgment on the Roll with Poftea Continuato inde Proceffu, &c.

At which Day, &c. That is, on the Return of the Diftringas.

On the Day and at the Place, &c. The Day and Place of Nifi prius mentioned in the Jurat, or Award of the Diftringas.

N 4

But

But at present they both feem, not only unneceffary, but very incoherent; for this Form is now used when there is no Continuance at all, as when the Caufe is tried the fame Term the Ifue is joined, in which Cafe the Venire is returned in the fame Term, on which very Return Day the Diftringas is tefted. Where then is any Continuance of the Process?

When the Caufe is not tried the fame Term the Iffue is joined, then the first Venire, awarded by the Iffue, is continued by Vicecomes non mifit Breve; and fo on in like Manner, from Term to Term, until the Diftringas iffues; and the laft Venire is continued, as before, by Poftea Continuato, &c. thus:

the fame Day is given to the Parties aforefaid at the fame Place; * at which Day before our Lord the King at Westminster came the Parties aforefaid, by their Attornies aforefaid, and the Sheriff of Berks did not return the faid Writ, nor did they do any Thing thereupon; therefore let a Jury come thereupon before our Lord the King at Westminster, on next after

(fome Return in the Term next after that the first Writ was returnable in) who are in no wife of Kin either to the faid A. B. or to the faid C. D. to take Cognizance upon their Oath of the whole Truth of the Premises, because as well the faid C. D. as the faid A. have put themselves upon that Jury; the fame Day is given to the Parties aforefaid at the fame Place, (if there is to be other Continuances to other Terms, begin again for each) at which Day before our Lord the King at Weftminft er came the Parties aforesaid, by their

* At which Day, &c. i. e, on the Return Day of the Venire. Attornies