Definition
Costs of the day are the litigation expenses incurred specifically in preparing for trial on a particular scheduled day — principally witnesses' fees and other fees of attendance. The phrase refers not to the full costs of an action, but to the narrow category of expenses generated by readying a case for trial on a specific date. In English practice, these costs were most commonly awarded against a plaintiff who had given notice of trial but then failed to appear and proceed, penalizing the party whose neglect caused the opposing side to incur wasted preparation expenses.
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Common Confusion
COSTS OF THE DAY vs. COSTS DE INCREMENTO vs. COSTS OF THE ACTION: These are three distinct concepts that historical sources sometimes run together. Costs of the day are limited to preparation expenses for a specific trial date. Costs de incremento (costs of increase) are costs adjudged by the court in addition to those assessed by the jury — a separate and independent award. Costs of the action (or costs of the suit) refers to the full measure of recoverable litigation costs across the proceeding as a whole. A researcher encountering any of these phrases in historical pleadings or orders should not treat them as interchangeable.
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Why It Matters in Research
This is primarily a term of English common law practice, and its appearance in American sources largely tracks the adoption of English procedural forms in the colonial and early republic periods. Researchers working in nineteenth-century American case law or practice manuals will encounter the phrase most often in contexts involving failed or postponed trials — situations where one party had prepared witnesses and incurred attendance costs based on a notice of trial that the opposing party then abandoned or neglected.
The practical significance of the term has diminished substantially under modern procedural codes. Federal practice under Rule 54(d) and 28 U.S.C. § 1920 governs the taxation of costs broadly, and the granular English distinction between costs of the day and other cost categories does not map cleanly onto the modern federal framework. State practice varies, but few contemporary American jurisdictions retain the phrase as a term of art.
A key research trap: Bouvier's treatment of costs of the day appears embedded in a larger discussion of executor and administrator liability for costs — a context that has nothing to do with the core meaning of the phrase. Researchers pulling Bouvier excerpts should take care to isolate the specific definition from the surrounding material about fiduciary misconduct, which concerns a different set of cost rules entirely.
Historical practice manuals — particularly Archbold, Tidd, and Lush — are the most reliable sources for understanding the procedural mechanics of costs of the day in English practice. American adaptations of these manuals often carried the terminology forward without always preserving the precise procedural context that gave it meaning.
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Historical Dictionary Support
The historical dictionaries agree on the core definition: costs incurred in preparing for trial on a specified day, consisting of witnesses' fees and other attendance fees. Burrill offers the most precise formulation and cites Archbold's New Practice as authority. Black's partial entry aligns with Burrill's framing. Bouvier confirms the English practice rule — that these costs are ordered against a plaintiff who neglects to go to trial according to notice — and cites Lush's Practice and Mozley & Whiteley's Law Dictionary in support.
Rapalje & Lawrence does not define costs of the day directly; the relevant entry points the researcher to a general costs section, with surrounding entries illustrating how English practice generated a vocabulary of cost-phrase terms of art (costs to abide the event, costs sustained in the action, costs that have accrued, and so forth). This cluster of related phrases in Rapalje underscores that costs of the day was one of several precisely defined cost categories in English and early American litigation, each triggered by specific procedural circumstances.
None of the historical dictionaries address the fate of this term under code pleading or the transition to modern procedural rules — an expected gap, given their publication dates, but one that researchers must supply from other sources.
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Jurisdictional Note
The term is substantially English in origin and application. American jurisdictions absorbed it through reception of English practice, but its continuing vitality varies. Researchers working in pre-twentieth-century American state court records — particularly in jurisdictions that closely followed English common law procedure — are most likely to encounter it as an operative term. In contemporary federal and most state practice, the concept has been absorbed into general cost-shifting frameworks without retention of the specific phrase.
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Encyclopedia Cross-Reference
civpro_142: Costs and Taxation of Costs — Rule 54(d) and 28 USC 1920 (The Law Mind Civil Procedure & Evidence Encyclopedia)
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