to order compensation of costs in those cases. It is interesting to notice that the rule of the Court of Chancery in England was similar, until altered by the Judicature Act of 1875, after which it became the rule that the successful appellant would get his costs. Voet, whose great work was pub lished about the beginning of the last cen tury, treats the subject at much length, making no question whatever that the judge has large discretionary powers in compen sating costs, and stating a number of ex amples. Some of his expressions show that there was an opinion in his time that too frequent compensation of costs had the effect of encouraging rash litigation, and he cites with approbation an instruction by the Su preme Court to inferior tribunals "tton oportere nimis faciles ac prouos esse ad deceruendam hanc compensationem, imo prohibeutur eandem admittere, si non justissimae causae contrarium suaserunt," which seems to be exactly the same principle which has been reached in the most modern procedure. Vanderlinden, whose writings carry the law down to the beginning of the present century, at which time the law in our Roman-Dutch colonies was pretty well fixed, thus con denses the doctrine : " Compensation of costs takes place either because the parties are very nearly related to each other, or because the respondent in appeal had a judgment in his favor, or because the case appeared so doubtful to the judge, that, ac cording to his view, the plaintiff did not act rashly in instituting the action, nor the de fender in opposing it, with the determination of which the judge's conscience is charged." To determine rightly on this subject is often a matter of much nicety and difficulty, in which the assistance of counsel trained usually in England, not deeply versed in
Roman-Dutch law, and rather closely wedded to the idea that costs follow the event, is apt to be not very available; but it is as much a part of the judge's duty to exercise his discretion as to costs, when the occasion arises, as to do so on any other point on which a discretionary power belongs to his office. Under the denomination of costs were in cluded the fees of advocates, the salaries of procurators, the fees of the officers of court, the expenses of procuring witnesses, the wages of workmen while waiting to give evi dence, and the expenses of the plaintiff or defender necessarily incurred in traveling to the court. No charge of whatever nature was to be immoderate in amount; the items to be allowed, and the amounts of them, were subject in great measure to the arbitrament of the judge who tried the cause; in other words, he had the duty of taxing master, a duty from which judges in some of our colo nies were only recently relieved. Between persons within certain degrees of relationship rash litigation was restrained by the necessity of obtaining from the court leave to bring the action (venia agendi) be fore commencing proceedings. Leave was only granted upon the court being satisfied that there were prima facie grounds, and that the proceeding was in good faith. This was one of those paternal and protective provisions of the Roman-Dutch law, which we find characteristic of that system in its adoption and continuation of the Civil Law. I do not know if some provision of a kindred sort, but less restricted in its operation, could in modern times be applied to check actions of the speculative class, against which the remedy of costs no doubt lies, but often is in result entirely abortive. — D. P. Chalmers, in Juridical Review.
