INTRODUCTION ciii

As previously observed most judgments contained an award of costs and charges.
The statutory basis for an award of costs and charges is found in a 1692 act which
primarily gave two justices summary jurisdiction to award execution in certain
proceedings by creditors but provided as well that, in such proceedings, "as in all
other civill causes in their Majesties Courts within this Province, the Party cast
shall satisfy the cost and court charges." It should be noted, however, that the
July 1699 act which covered the same ground, among other things, and by implica-
tion at least, repealed the 1692 act, made no provision for costs and court charges
"in all other civil causes." 68

It may have been assumed that the county courts had power to award costs,
apart from any power granted by provincial statute, perhaps on the basis of the
extension of 6 Ed. I, c. 1, 23 Henry VIII, c. 15 and 4 Jac. I, c. 3 to the province. A
1692 act provided that in an action based upon an account, if demand were first
made as provided in the act, then it should be lawful for the creditor to sue the
debtor for the debt "and recover against him all such Costs and damages as upon
legall Tryall in any Court of this Province shall be adjudged against him." In the
event the creditor sued contrary to such provisions, the creditor would "loose all
his Costs of such Suite" and be liable to satisfy the debtor for all such damages as
accrued from such vexatious and unjust suit. 69

A July 1699 law reiterated the above provisions and, in connection with a provi-
sion allowing defendants to prove partial payment of the debt sued for, made ref-
erence to judgment for plaintiff "with Cost of Suite," provided the balance, in
suits in the county courts, exceeded 200 pounds of tobacco or sixteen shillings, eight
pence.

Another 1692 act—An Act for Amerciaments in the Provinciall and County
Courts—also appears to have assumed the power of the county courts to award
"damages and costs". This act, designed to prevent the raising of many suits upon
frivolous occasions by litigious persons, provided that any person, whether plaintiff
or defendant, cast in any cause in the county courts should be amerced, besides the
damages and costs to the recoverers, thirty pounds of tobacco. 70 In 1692 the amerce-
ment was characterized as "an Antient Prerogative of the Crown by Custom im-
memoriall for their false Clamour in his Court of Judicature". The clerks of the
severall county courts were to keep an exact account of the amercements and de-
liver or send them to the several sheriffs in the particular counties who were re-
quired to collect them with the levy, were empowered upon default of payment
to make distress, and were commanded not to return any arrears, except in the
case of executors or administrators who could not pay without an order. The
clerks of the respective courts were also to give to the chief justice of each such
court a list of the amercements such court imposed. 71 However, it is not until the
September 1699 term that we find an order entered in the Liber that the clerk make
a list of all amercements since the establishment of the county and give a copy
thereof to the sheriff to collect with the county levy. 72 An amercement is indicated

68. 13 MA 484; 22 id. 504.

69. 13 id. 530. As to the extension in part of 6 Ed. I, c. 1 to the province see Kilty, op. cit. supra
210-11 and Alexander, op. cit. supra 79. As to 23 Henry VIII, c. 15 Kilty commented that "it is
under this statute that defendants prevailing in suits recover their costs ... There are several acts of
assembly respecting costs, but none that interfere with this statute ..." Op. cit. supra 231. As to 4
Jac. I, c. 3 see Kilty, op. cit. supra 236. As to sections 1 and 2 of 8 and 9 Wm. III, c. II see id. 243-44.

70. 22 MA 529.

71. 13 id. 313, 514; 22 id. 466. Sec also the comment by Kilty on c. 14 of Magna Carta. Op. cit.
supra 10-11.

72. Infra 615.