COSTS DE INCREMENTO - The Law Mind Legal Dictionary

COSTS DE INCREMENTOAuthored

The Law Mind • 874 words

Definition

Costs de incremento (also rendered "costs of increase") are additional costs awarded by the court on top of those assessed by a jury. Where a jury's damages or cost award is deemed insufficient to cover the actual reasonable expenses of litigation, the court exercises its supervisory authority to supplement that award by taxing further costs. These incremental costs typically include items that do not appear on the face of the record or verdict itself — such as witness fees and travel expenses, counsel fees, attendance charges, and court fees — which the jury, operating within its limited competence on damages, would not have had before it.

The Latin phrase translates literally as "of increase" or "of increment," referring to the increase applied by the court to the jury's base figure.

Common Confusion

Costs de incremento should not be confused with the general concept of "costs" awarded as part of a judgment, nor with damages assessed by the jury. The jury's function is to determine the facts and fix the principal damages or costs it finds proven; the court's function in awarding costs de incremento is distinct and supervisory — it fills the gap between what the jury could calculate and what the litigation actually required. The two awards operate in sequence, not in competition.

Recognized Forms

/SUBTYPES

The phrase appears in practice under two closely related headings in historical sources:

1. Costs de incremento — the standard form used in pleading and practice literature when referring to the court's supplementary cost award.
2. De incremento alone — used as a standalone reference in some dictionaries (notably Burrill) cross-referencing "Increase," indicating that the same doctrine was sometimes indexed under that term in historical legal literature.

Why It Matters in Research

This term is almost exclusively a historical one. Researchers encountering it in pre-twentieth-century American or English case law, pleading records, or cost taxation proceedings should understand that it reflects a procedural mechanism that has largely been absorbed into modern cost-shifting frameworks and court-administered fee schedules. It will not appear in contemporary American federal or most state procedural rules by this name.

Several research traps exist:

First, the source material reveals inconsistency in historical dictionary coverage. Bouvier's entry under this heading is misfiled — the text reproduced there is actually the entry for DE INJURIA, an entirely unrelated pleading concept. Researchers relying on Bouvier for this term will be misled. Black's and Burrill are the reliable sources here.

Second, Rapalje & Lawrence's entry appears fragmentary and concerns knight's service tenure and the Statute of 12 Car. II c. 24, which is also displaced and belongs to a different entry. This suggests that in some historical editions and reprints, entries for "costs" terms were occasionally interleaved with entries on "copyhold" or "tenure" topics beginning with similar letters or sharing marginal proximity on the page.

Third, the Black's citation to 13 How. 372 references a volume of Howard's Reports from the United States Supreme Court. Researchers should verify the specific volume and page against the actual reporter before relying on it, as citation forms for Howard's Reports varied.

For corpus research, this term is a reliable marker of pre-twentieth-century common law pleading and practice literature. Its presence in a document signals the procedural culture of the writ system and cost taxation practices that predated modern rules-based civil procedure. It clusters naturally with terms like "taxation of costs," "bill of costs," and related procedural vocabulary of the English common law tradition as received in American practice.

Historical Dictionary Support

Black's Law Dictionary provides the most complete and directly relevant definition, describing costs de incremento as costs "adjudged by the court in addition to those assessed by the jury," and specifying that they cover "extra expenses incurred which do not appear on the face of the proceedings, such as witnesses' expenses, fees to counsel, attendances, court fees, etc." The attribution to Wharton (Francis Wharton, the American legal lexicographer and treatise writer) places this definition within the mid-to-late nineteenth-century common law practice tradition.

Burrill's Law Dictionary, true to its cross-referencing style, directs the reader to "De Incremento, Increase" without independent elaboration — useful for corpus navigation but not for substantive definition.

Bouvier's and Rapalje & Lawrence contribute nothing reliable to this specific entry, as their reproduced text is clearly misassigned. This is a notable instance where historical dictionary sources diverge not on substance but on editorial reliability, and researchers should weight Black's and Burrill accordingly for this term.

No historical source addresses the procedural mechanism by which costs de incremento were actually calculated or taxed, which limits the dictionary record as a standalone research tool. Treatise literature on cost taxation and pleading practice would be the appropriate supplement.

Jurisdictional Note

The concept originates in English common law practice and was received into early American courts. It has no direct modern American procedural equivalent by this name. English practice has similarly evolved well beyond this framing. Researchers working in nineteenth-century state court records may encounter it in jurisdictions with strong English common law inheritance.

COSTS DE INCREMENTOmain

Black's Law Dictionary • 1891

creased costs, costs of increase. Costs ad- judged by the court in addition to those as- sessed by the jury. 13 How. 372. Those extra expenses incurred which do not appear on the face of the proceedings, such as witnesses' expenses, fees to counsel, attendances, court fees, etc. Wharton.

COSTS DE INCREMENTOmain

Bouvier's Law Dictionary • 1928

DE INJURIA (Lat. The full term is, de injuria sua propria absque tali causa, of his own wrong without such cause; or, where part of the plea is admitted, absque residuo causæ, without the rest of the cause). In Pleading. The replication by which in an action of tort the plaintiff denies the effect of excuse or justification offered by the defendant. It can only be used where the defendant pleads matter merely in excuse and not in justification of his act. It is confined to those instances in which the plea neither denies the original existence of the right which the defendant is charged with having violated, nor alleges that it has been released or extinguished, but sets up some new mat- ter as a sufficient excuse or cause for that which would otherwise and in its own na- ture be wrongful. It cannot, therefore, be properly used when the defendant's plea al- leges any matter in the nature of title, in- terest, authority, or matter of record; 8 Co. 66; 1 B. & P. 76; 4 Johns. 159, note; 1 Wend. 126; 25 Vt. 328; 12 Mass. 506; 88 N. J. L. 98; Steph. Pl. 276; Pep. Pl. 35. The English and American cases are at va- riance as to what constitutes such legal au- thority as cannot be replied to by de injuria. Most of the American cases hold that this replication is bad whenever the defend- ant insists upon a right, no matter from what source it may be derived; and this seems to be the more consistent doctrine. If the plea in any sense justifies the act, instead of merely excusing it, de injuria cannot be used; 4 Wend. 577; 1 Hill, N. Y. 78; 13 III. 80. The English cases, on the other hand, hold that an authority derived from a court not of record may be traversed by the replication de injuria; 8 B. & Ad. 2. The plaintiff may confess that portion of a plea which alleges an authority in law or an interest, title, or matter of record, and aver that the defendant did the act in ques- tion de injuria sua propria absque residuo causæ, of his own wrong without the residue of the cause alleged; 1 Hill, N. Y. 78; 2 Am. Law Reg. 246; Steph. Pl. 276. The replication de injuria puts in issue the whole of the defence contained in the plea; and evidence is, therefore, admissible to dis- prove any material averment in the whole plea; McKelv. Pl. 50; 8 Co. 66; 11 East 451; 10 Bingh. 157; 8 Wend. 129; 14 Wall. 613. See 2 Cr. M. & R. 338. In England, however, by a uniform course of decisions in their courts, evidence is not admissible under the replication de injuria to a plea, for instance, of moderate castigavit or mol- liter manus imposuit, to prove that an excess of force was used by the defendant; but it is necessary that such excess should be spe cially pleaded. There must be a new assign- ment; 2 Cr. M. & R. 338; 1 Bingh. 317; 1 Bingh. N. C. 380; 3 M. & W. 150. In this country, on the other hand, though some of the earlier cases followed the Eng- lish doctrine, later cases decide that the plaintiff need not plead specially in such a case. It is held that there is no new cause to assign when the act complained of is the same that is attempted to be justified by plea. Therefore the fact of the act being moderate is a part of the plea, and is one of the points brought in issue by de injuria; and evi lence is admissible to prove an ex- cess; 15 Mass. 351; 25 Wend. 371; 2 Vt. 474: 24 id. 218; 1 Zabr. 183. Though a direct traverse of several points going to make up a single defence in a plea will be bad for duplicity, yet the general re- plication de injuria cannot be objected to on this ground, although putting the same number of points in issue; 3 B. & Ad. 1; 25 Vt. 330; 2 Bingh. N. c. 579; 8 Tyrwh. 491. Hence this mode of replying has a great advantage when a special plea has been resorted to, since it enables the plain- tiff to traverse all the facts contained in any single point, instead of being obliged to rest his cause on an issue joined on one fact alone. In England it is held that de injuria may be replied in assumpsit; 2 Bingh. N. C. 579. In this country it has been held that the use of de injuria is limited to actions of tort; 2 Pick. 357. But in New Jersey it may be used in actions ex contractu wherever a special plea in excuse of the alleged breach of contract can be pleaded, as a general tra- verse to put in issue every material allega- tion in the plea; 38 N. J. L. 98. Whether de injuria can be used in actions of replevin seems, even in England, to be a disputed question. The following cases decide that it may be so used; 9 Bingh. 756; 3 B. & Ad. 2; contra, 1 Chit. Pl. 622. The improper use of de injuria is held to be only a ground of general demurrer; 6 Dowl. 502; but see 3 M. & W. 230; 2 Pick. 357. Where it is improperly employed, the defect will be cured by a verdict; 5 Johns. 112; Hob. 76; 1 T. Raym. 50. See, gene- rally, 11 Am. L. Reg. 577; Crogate's Case, 1 Sm. Lead. Cas. 247. DE JUDAISMO, STATUTUM. The name of a statute passed in the reign of Edward I., which enacted severe penalties against the Jews. Barringt. S

COSTS DE INCREMENTOmain

Rapalje & Lawrence • 1888

- Costs of of the tenure by knight's service, it is virtually abolished by the Statute 12 Car. II. c. 24, which

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