Definition
A Latin phrase meaning "of increase" or "in addition." In legal usage, de incremento refers principally to costs awarded by a court that are supplemental to — and distinct from — the damages and nominal costs assessed by a jury.
Costs de incremento (also called costs of increase) are those costs adjudged by the court itself in civil actions, layered on top of whatever the jury has found. The jury's role was to fix damages and nominal costs; the court then exercised its own authority to add further costs as a matter of law. This dual-track cost system reflects the historical division of function between judge and jury in common law civil proceedings.
The phrase also appears in the compound term wages de incremento, referring to incremental or additional wages — a usage found in English common law authorities.
Common Confusion
De incremento is sometimes loosely grouped with other Latin cost-related phrases, but its specific meaning is precise: these are court-added costs, not jury-assessed costs. Researchers should not conflate costs de incremento with the general damages or costs returned by a jury verdict. The distinction tracks a structural feature of common law civil procedure — the separate authority of the court to tax costs — that has largely been absorbed into unified cost-award frameworks in modern practice.
Why It Matters in Research
This term is essentially a historical artifact of common law civil procedure and will appear almost exclusively in older English and early American materials. Researchers encountering it should recognize several things:
First, the term signals a procedural regime in which cost-taxing was bifurcated: the jury determined the underlying damages and nominal costs, while the court separately exercised statutory or inherent authority to award additional costs. Understanding this division is essential to reading older case reports accurately — a reference to "costs de incremento" is not describing jury-awarded costs.
Second, Burrill's citation to 13 Howard's R. 372 (a U.S. Supreme Court reporter volume from the mid-nineteenth century) and to the English authority at 4 M. & S. 316 (Maule & Selwyn's King's Bench reports) suggests the term had some active use in American courts through at least the 1850s. Researchers working in that period should check both English and federal sources.
Third, the wages de incremento usage (referenced in Burrill via Lord Ellenborough) points to an entirely separate doctrinal context involving employment or service relationships. A researcher finding this phrase in an unrelated context — not a civil cost award — should consider whether the wages sense is operative.
Fourth, modern cost-shifting frameworks have fully displaced the procedural structure that gave this phrase meaning. Do not expect de incremento to appear in any operative legal framework after the mid-to-late nineteenth century in American jurisdictions, or after the procedural reforms of the twentieth century in English law.
Historical Dictionary Support
The historical dictionaries are in close agreement on the core definition. Black's (both editions) and Burrill's reproduce nearly identical language, all tracing back to Gilbert's Common Pleas (Gilb. Com. Pl. 260) as the primary authority for the costs de incremento usage. Rapalje & Lawrence's entry is fragmentary as reproduced — it gestures toward a related concept (possibly dower or marital estate, given the phrase "of her husband's estate") without completing the definition, suggesting a truncated or cross-referenced entry in the original.
Burrill adds the most value among the historical sources by citing both an American authority (13 Howard's R. 372, per Justice Grier) and the wages de incremento usage via Lord Ellenborough (4 M. & S. 316), indicating the phrase carried meaningful doctrinal weight across two distinct legal contexts. No historical dictionary provides extended analysis; all treat it as a phrase whose meaning is adequately conveyed by definition and a single leading authority.
What the historical dictionaries do not address is the procedural mechanics that made the distinction between jury costs and court costs meaningful — that context must be reconstructed from procedure treatises and case law of the period.
Jurisdictional Note
The term is rooted in English common law civil procedure and was received into early American practice. Its operational significance was always jurisdiction-specific depending on how individual courts structured cost-taxing authority. It has no meaningful presence in modern American or English procedural law.