by the court; and under some statutes still unrepealed, double or treble costs are to be allowed. Besides the rules above stated, there is also a provision, adopted from the practice of courts of equity, that if tender was made before action of a sum sufficient to satisfy the plaintiff’s just demand and is followed by payment into court in the action of the sum tendered, the court will make the plaintiff pay the costs of action as having been unnecessarily brought.
Costs of interlocutory proceedings in the course of a litigation are sometimes said to be “costs in the cause,” that is, they abide the result of the principal issue. A party succeeding in interlocutory proceedings, and paying the costs therein made “costs in the cause,” would recover the amount of such costs if he had a judgment for costs on the result of the whole trial, but not otherwise. But it is usual now not to tax the costs of interlocutory proceedings till after final judgment.
Taxation.—When an order to pay the costs of litigation is made the costs are taxed in the central office of the High Court, unless the court when making the order fixes the amount to be paid (R.S.C., O. 65, r. 23). Recent changes in the organization for taxing have tended to create a uniformity of system and method which had long been needed.
The taxation is effected, under an elaborate set of regulations, by reference to the prescribed scales, and on what is known as the lower scale, unless the court has specially ordered taxation on the higher scale (R.S.C., O. 65, rr. 8, 9, appendix N).
In the taxation of litigious costs two methods are still adopted, known as “between party and party” and “between solicitor and client.” Unless a special order is made the first of the two methods is adopted. Until very recently “party and party” costs were found to be a very imperfect indemnity to the successful litigant; because many items which his solicitor would be entitled to charge against him for the purposes of the litigation were not recoverable from his unsuccessful opponent. The High Court can now, in exercise of the equitable jurisdiction derived from the court of chancery, make orders on the losing party to pay the costs of the winner as between solicitor and client. These orders are not often made except in the chancery division. But even where party and party costs only are ordered to be paid under the present practice (dating from 1902), the taxing office allows against the unsuccessful party all costs, charges and expenses necessary or proper for the attainment of justice or defending the rights of the successful party, but not costs incurred through over-caution, negligence, or by paying special fees to counsel or special fees to witnesses or other persons, or by any other unusual expenses (R.S.C., O.65, rr. 27, 29). This practice tends to give an approximate indemnity, while preventing oppression of the losing party by making him pay for lavish expenditure by his opponent. The taxation is subject to review by a judge on formal objections carried on, and an appeal lies to the Court of Appeal.
County Courts.—The costs of all proceedings in county courts follow the event, unless the judge in his discretion otherwise orders. The amount allowed is regulated by scales included in the county court rules, and is ascertained by the registrar of the court subject to any special direction by the judge, and to review by him. The costs are allowed as between party and party, but the registrar on the application of solicitor or party, and subject to the like review, taxes costs as between solicitor and client. Nothing is allowed which is not sanctioned by the scales, unless it is proved that the client has agreed in writing to pay (County Courts Act 1888, § 118).
Costs in Criminal Cases.—In criminal cases the right to recover the expenses of prosecution or defence from public funds or the opposite party depends wholly on statute. According to the common law rule the crown neither pays nor receives costs, but the rule is in some cases altered by statute (Thomas v. Pritchard, 1903, 1 K.B. 209).
Courts of summary jurisdiction may order costs to be paid by the unsuccessful to the successful party (Summary Jurisdiction Act 1848, § 18).
On prosecutions for treason or felony the court may order the accused person, if convicted, to pay the costs of his prosecution (Forfeiture Act 1870); and the like power exists as to persons convicted of offences indictable under the Criminal Law Amendment Act 1885 (see § 18), and as to persons convicted on indictment of assault, corrupt practices at elections, offences against the Merchandise Marks Acts, or of defamatory libel, if they have unsuccessfully pleaded jurisdiction.
Provision is also made for the payment out of the local rate of the district of the costs of prosecuting all felonies (except treason felony) and a number of misdemeanours. A list of these offences will be found in Archbold, Criminal Pleading, 23rd ed., 246. The legislation on this subject authorizes the payment of the expenses of witnesses and of the prosecutor, both at a preliminary inquiry before justices and at the trial, and in the case of summary conviction for any of the indictable offences in question. It has been extended so as to include the expenses of witnesses for the defence in any indictable case if they have given evidence at the preliminary inquiry, and the costs of the defence of poor prisoners in every indictable case in which the committing justices or the court of trial certify for legal aid (Poor Prisoners’ Defence Act 1903). The costs are taxed by the proper officer of the court of assize or the clerk of the peace in accordance with scales issued by the Home Office in 1903 and 1904. These scales do not fix the fees to be allowed to counsel or solicitor for the prosecution. The costs, when taxed, are paid by the treasurer of the county or borough on whom the order for payment is made.
Where a prosecution or indictment fails, the prosecutor cannot as a rule be made to pay the costs of the defence: except in cases within the Vexatious Indictments Act 1859 and its amendments (i.e. where he has, after a refusal by justices to commit for trial, insisted on continuing the prosecution); or where a defamatory libel is successfully justified, or where prosecutions in respect of merchandise marks or corrupt practices at elections have failed. (W. F. C.)
COSTUME (through the Fr. costume, from Ital. costume, Late Lat. costuma, a contracted form of Lat. consuetudinem, acc. of consuetudo, custom, habit, manner, &c.), dress or clothing, especially the distinctive clothing worn at different periods by different peoples or different classes of people. The word appears in English in the 18th century, and was first applied to the correct representation, in literature and art, of the manners, dress, furniture and general surroundings of the scene represented. By the early part of the 19th century it became restricted to the fashion or style of personal apparel, including the head-dresses, jewelry and the like.
The subject of clothing is far wider than appears at first sight. To the average man there is a distinction between clothing and ornament, the first being regarded as that covering which satisfies the claims of modesty, the second as those appendages which satisfy the aesthetic sense. This distinction, however, does not exist for science, and indeed the first definition involves a fallacy of which it will be as well to dispose forthwith.
Modesty is not innate in man, and its conventional nature is easily seen from a consideration of the different ideas held by different races on this subject. With Mahommedan peoples it is sufficient for a woman to cover her face; the Chinese women would think it extremely indecent to show their artificially compressed feet, and it is even improper to mention them to a woman; in Sumatra and Celebes the wild tribes consider the exposure of the knee immodest; in central Asia the finger-tips, and in Samoa the navel are similarly regarded. In Tahiti and Tonga clothing might be discarded without offence, provided the individual were tattooed; and among the Caribs a woman might leave the hut without her girdle but not unpainted. Similarly, in Alaska, women felt great shame when seen without the plugs they carried in their lips. Europeans are considered indelicate in many ways by other races, and a remark of Peschel[1] is to the point: “Were a pious Mussulman of Ferghana to be present at our balls and see the bare shoulders of our wives and daughters, and the semi-embraces of our round dances, he would silently wonder at the long-suffering of Allah who had not long
- ↑ The Races of Man.
