Some Points in Roman-Dutch Procedure. evasion of the penalty, for if the party sued was wily enough to defend by procuration, the result would be that although condemned he would escape the infamia, as the judg ment would run in terms against the procu rator, whilst neither would the latter take harm, as the judgment would not be against him personally, but on behalf of another. This became unimportant, however, as it was afterwards the practice that all judg ments should run against the principal. A second condition was that it should be shown that the party condemned had been actually guilty of misconduct or bad faith, as it was plainly inequitable that infamia should attach to anyone whose fault con sisted only in want of skill, or such negli gence as any man might fall into without forfeiting his character of a prudent and trustworthy person. The third condition was that the adverse judgment should take place in an actio directa, not in a counter or cross action, in which it was considered that questions of deceit or misconduct did not properly arise, but only questions of calculation and set off. The unsuccessful litigant, besides losing his action, and paying expenses, was also required in certain real and personal actions to pay a fine amounting to a fiftieth of the estimated value of the subject-matter of the action. In case of an appeal unsuccessfully carried from a local judge to the Court of a Province, there was a fine of thirty florins, and on an unsuccessful appeal to the senate, the suitor was fined fifty florins. The small amount of these fines is suggestive of the high value of money at that time. The adjudication of the expenses of the action against the unsuccessful party — a development in the growth of procedure — was the most important of all the methods of deterring from rash litigation, and it has continued to keep its place long after the disuse of the other methods. The idea of a penalty against the temerarius litigator is conspicuous both in the legislation and in
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the writings of the jurists on this subject, quite as much, or, I should rather say, more than that of a right in the unsuccessful suitor. Thus the law of costs was ap proached from a quite different direction to that in the English system, where the subject has been so much dealt with on the principle of recompense — the successful party being held to have right to be re imbursed of the expenses he has been forced to incur through the proceedings of his op ponent. On the principle of penalty the unsuc cessful party was condemned under the Roman-Dutch systems in costs, although the adversary had not asked for costs. On the same principle of penalty we find the broad rule that the unsuccessful party should pay costs is relaxed under a variety of cir cumstances, in which it is considered that the latter has not been in fault. Thus he is excused if he had a good ground of liti gation, whether in maintaining his claim, or opposing that of his adversary; which hap pens from time to time, it is said, " either because the matter is in its nature obscure, or from excusable ignorance of the facts, or even from the uncertainty of the law arising out of discrepant and conflicting opinions of the authorities." It was, speak ing generally, a question for the discretion of the court in which the cause was tried; if the judge considered that the unsuccess ful party had such a just cause of action, and that the whole circumstances were such that each party should bear his own costs, he gave effect to his opinion by an order that the costs be compensated. A number of particular cases are mentioned by Gaill in his observations on "Judicial Pro cedure," and by Van Leuwen in his " Censura Forensis," and by John Voet in his " Com mentaries on the Pandects." Amongst these is the case of a litigant failing in the Appeal Court, who had been successful in the court of inferior jurisdiction : and it was the universal practice of the Camera Imperialis
