"inquisition into court." This process is called a writ of inquiry: in the execution of which the sheriff sits as judge, and tries by a jury what damages the plaintiff has really sustained; and when their verdict is given, the sheriff returns the inquisition, which is entered upon the record in the action; and thereupon it is adjudged by the court that the plaintiff do recover the exact sum of the damages so assessed. In like manner, when a demurrer is determined for the plaintiff in an action wherein damages are recovered, the judgment is also incomplete, without the aid of a writ of inquiry.

So where the relief to which a plaintiff is found entitled cannot be ascertained upon the hearing; the judgment must be interlocutory. And therefore where accounts are to be settled, or incumbrances and debts to be inquired into; these matters are, by an interlocutory order, referred to chambers for examination, the result being afterwards reported to the court. This report may then be excepted to, disproved, and overruled; or otherwise confirmed, and made absolute, by order of the court; after which the final decree or judgment is made.

To final judgments, which put an end to the action by awarding to the plaintiff what he has claimed, or has proved himself entitled to, or otherwise dismissing the suit altogether, costs are a necessary appendage; it being now as well the maxim of ours as of the civil law, that "victus victori in expensis condemnandus est."

The common law did not allow any costs until by a great variety of statutes, beginning with the statute of Gloucester, costs were allowed in all cases, except those in which the successful party was by statute expressly deprived of them; as in trifling and malicious actions, for words, for assault and battery and for trespass, where the plaintiff recovered by verdict less than 40s. Here he was not entitled to any costs whatever, unless the judge certified that the action was brought to try a right, besides the mere right to recover damages, or that the trespass or grievance was wilful and malicious. And in all actions for an alleged wrong, in which less than 57. was recovered, the judge might certify to deprive the plaintiff of costs altogether. In actions upon judgments, the plaintiff recovered no costs; and when he recovered in contract less than 207., or in

tort less than 107., here, as he might have sued in the county court, he was deprived of his costs, unless in either class of cases the court otherwise ordered.

As a general rule, again, the sovereign, and any person suing to his use, neither paid nor received costs; for, besides that he is not included under the general words of the statutes relating to costs, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them.

Paupers, that is, such as swear themselves not worth 51., have writs and subpoenas gratis, and counsel and solicitor assigned them without fee; and are excused from paying costs, when plaintiffs. It was formerly usual to give such paupers, if nonsuited, their election either to be whipped or pay the costs; though that practice is now disused. But a pauper may recover costs, though he pays none; for the counsel and clerks are bound to give their labour to him, but not to his antagonist.

In the courts of equity, the costs were always in the discretion of the court. The same rule prevailed in the High Court of Admiralty; and was adopted by the legislature when it transferred the jurisdiction of the ecclesiastical courts in testamentary and matrimonial causes to the courts of probate and divorce.

In the High Court of Justice, the costs of and incident to all proceedings are in the discretion of the court; except in one instance, and that is in the case of any action or issue tried by a jury; here the costs follow the event, unless for good cause shown, either to the judge who tries the case, or to the court itself in which the action is pending, it be otherwise ordered.

After judgment is entered, execution may follow to enforce it, unless the party condemned thinks himself aggrieved; and then he has his remedy to reverse the judgment, if it be erroneous, on appeal.

CHAPTER XVI.

APPEAL.

THE method of redressing erroneous judgments in the courts of common law at Westminster, was formerly by alleging, or, as it was called, bringing error in some superior court of appeal. Error lay for some supposed mistake in the proceedings of a court of record; for to amend errors in an inferior court, not of record, a writ of false judgment lay. And error only lay upon matter of law arising upon the face of the proceedings; so that no evidence was required to substantiate or support it: there being no method of reversing an error in the determination of facts but by a new trial.

Now the court, in giving judgment, is always supposed to examine the whole record, and thereupon to decide for the plaintiff or defendant, according to the law as it appears on the face of the record, irrespective of the findings on the issues in fact; because immaterial issues may be raised, and the facts found may, therefore, be of no moment. Consequently, where judgment has been given for one party, when, on the whole record, it ought to have been for the other, there is error in law. And, therefore, in the cases already referred to, as those in which a defendant may apply to set aside the judgment, error would have lain, for no judgment for the plaintiff can stand, when his claim does not state a good cause of action. So where judgment was given for a defendant on a defence which was bad in law, error lay, and an appeal may now be resorted to.

In order to bring error, the suitor who conceived himself aggrieved and who was called the plaintiff in error, sued out of Chancery a writ of error; which, in an action at law at Westminster, was addressed to the chief justice or chief baron, and commanded him to send a transcript of the record and other proceedings in his court under his seal to the Court of Exchequer Chamber, which was till recently the Court of Appeal, in order

that the same being examined by the judge of that Court, they might cause to be farther done thereupon, what of right ought to be done. To this writ, the Lord Chief Justice or Chief Baron, or in case of error brought upon the judgment of inferior courts, the judge of the court to which the writ of error was directed, made a return of a transcript as directed, and the record and proceedings were thus at once brought before the court of error for review.

A simpler method was provided in 1852 for bringing error on the judgments of the superior courts of law, by making error a step in the cause; the party aggrieved merely alleging error in a memorandum, which was filed in court, with a statement of the grounds of error intended to be argued, and both served on the opposite party, so as to supersede execution, until default in putting in bail in error-affirmance of the judgment-discontinuance by the plaintiff in error-or the proceedings being otherwise disposed of.

The mode of appealing from a decree in equity was by an application for rehearing. And this procedure is now of general application in the High Court. Proceedings in error in actions therein are abolished; and all appeals are by way of rehearing, and brought before the court of Appeal in a summary way by notice of motion.

The appellant produces to the proper officer of the court of Appeal an office copy of the judgment or order complained of, and leaves with him a copy of the notice of appeal to be filed; and the appeal is thereupon set down in a list of appeals, and comes on to be heard according to its order in that list. The notice of appeal is next served upon all parties directly affected by the appeal. It is not necessary to serve parties not so affected; but the court of Appeal, under whose control the action, by the entry of the appeal, is now brought, may direct notice to be served on all or any parties to it, or upon any person not a party, and in the meantime postpone or adjourn the hearing of the appeal, or give such judgment and make such order as might have been given or made, if the persons served with such notice had been originally parties.

The respondent has thus notice that the judgment in his favour is complained of. He is not called upon to join issue in

any way with the appellant; nor is it necessary that he should give any notice of motion by way of cross appeal; unless he intends upon the hearing, to contend that the decision of the court below should be varied; in which case, he must give notice to any parties who may be affected by such contention. For in order that every matter in controversy between the parties may not only be determined in the existing action, but may be determined finally and conclusively, the powers of the court of Appeal have been greatly extended.

The judgment of a court of error might have been either in affirmance of the former judgment; or that it should be reversed for error in law; or that the plaintiff should be barred of his right to bring error, as when a plea of the statute of limitations had been found for the defendant. The court of appeal in equity had somewhat more extensive powers; the courts of appeal from the courts of Probate, Divorce, and Admiralty, could only consider the cases before them.

The court of Appeal, as now constituted, has not only all the powers and duties of the court of first instance; but also full power to receive further evidence upon questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

It has also power not only to give any judgment and make any order which ought to have been given or made; but to make such further or other order as the case may require. And all these powers may be exercised, notwithstanding the notice of appeal may be against part only of the decision of the court below, and may be so exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.

The costs of appeal are also entirely in the discretion of the court of Appeal; which, however, generally follows the rule of law. For there, when the judgment of the court below was affirmed, or the plaintiff in error non pros'd, the defendant was entitled to damages and costs, as well as to interest upon the sum awarded him by the court below for the time that execution has been delayed; but if the judgment of the court below was reversed, each party must have paid his own costs.

If, as may happen, execution has been levied on the appellant