76 court of appeals of maryland

curred by the defendant or person grieved by the
judgment, both in the superior and¹⁸ inferior
courts. There had been no such allowance of costs
upon reversal before this time.¹⁹ Sir John Hoi-
lams, whose judgment and advice were much re-
lied upon in the reorganization of the English
courts during the latter half of the nineteenth cen-
tury, says in his "Jottings of an Old Solicitor",
(page 65),

In the present day it is impossible to give any reasonable
estimate as to the time within which the litigation must end,
or as to the expense which it may involve. Almost every decis-
ion is subject to the risk of appeal to the Court of Appeal, and
from that Court to the House of Lords, and those successive
appeals may conceivably happen more than once in the same
case. The practical mischief from this unrestricted right of
appeal arises from the modern system introduced by the Courts,
without express legislative authority, of allowing the successful
appellant the cost of the appeal and of the decision appealed
from. Formerly this was unheard of, and consequently even
when there was power to appeal it was not exercised, for the
unsuccessful litigant knew that even if the appeal should be
successful he would have to pay his own costs, and if it was
unsuccessful, the costs of his opponent also. Now, what the
Times, some time back, aptly described as the "gambling ele-
ment," has been introduced into litigation, the stake constantly
increases with successive appeals, and encouragement is given
by one final effort to throw the whole costs on the hitherto
successful party. In many cases this has been the result, and
many suitors in actions involving questions open to different
views, have had reason greatly to regret that in the first, and it
may be also in the second Court they were successful.

In 1791, a committee of the state Senate²⁰ rec-
ommended that part of the burden of costs be put

18. The original reads "or."

19. Sayer, Law of Costs, London 1777, 208. Tidd, Law of Costs in
Civil Actions, Dublin, 1793, SO.

20. Votes and Proceedings Senate, 1791, 93.