Definition
Increase, in its legal sense, refers to: (1) the produce or yield of land — crops, fruits, and other natural growth generated from real property; and (2) the offspring of animals — the progeny born of livestock or other creatures owned as property. Both senses carry significance in property law, particularly in questions of ownership, inheritance, and the rights of tenants or mortgagors with respect to natural growth and animal stock.
Two related compound terms appear in historical usage:
Affidavit of Increase: A sworn statement filed in the context of taxation of costs, attesting to the payment of increased costs awarded beyond a nominal sum. Used in the procedural mechanics of cost assessment following judgment.
Costs of Increase: In English practice, a historical term referring to the actual assessed costs awarded to a successful party by court officers, distinguished from the nominal sum (historically forty shillings) that a jury might award. The court's own officer — the taxing master — calculated the true, higher figure, and this additional amount was the "increase" over the nominal jury award.
---
Common Language
Modern common usage (Wiktionary): To become greater in size, number, or degree; a rise or growth in quantity or value.
Historical common usage (Webster's 1913): "The act of increasing; augmentation; growth; also, that which is added to the original stock by augmentation or growth." Webster's also notes the agricultural sense: "The produce of the earth, or the offspring of animals."
The everyday sense of growth or addition overlaps with the legal usage here more than in many terms, but the legal contexts are narrower and more formal. In property law, "increase" is not a dynamic process but a static category of things — the produce of land and offspring of animals — with defined ownership consequences. In the costs-of-increase sense, the term has no meaningful common counterpart at all, and researchers unfamiliar with English procedural history may misread references to "costs of increase" as merely meaning higher costs generally.
---
Why It Matters in Research
Researchers will encounter "increase" in three distinct legal contexts that require disambiguation on sight:
First, in property and probate records, "increase" denotes natural accessions to property — crops and animal offspring. This matters acutely when reading wills, deeds, chattel mortgage documents, and tenancy agreements from the 18th and 19th centuries. A bequest of livestock "together with their increase" extended the gift to all future offspring, and disputes over who held title to the increase of animals were not uncommon. The rule that the increase of animals generally follows the dam (mother) — analogous to the accession doctrine — is foundational here.
Second, the "costs of increase" usage is almost entirely historical and English in origin. American researchers reading English precedents or treatises from before the 19th century may encounter it. The mechanism — jury awarding nominal costs, court officer taxing the actual costs — was abolished or superseded as costs rules modernized. If a source references a party receiving "costs of increase," the researcher should understand this as the real, assessed costs supplementing a jury's nominal figure, not a penalty or extraordinary fee.
Third, the "affidavit of increase" is procedural and archival rather than substantive. It appears in English court records connected to the taxation of costs and has no direct American counterpart. Researchers working with English reports or colonial-era materials may encounter it as a filing requirement tied to cost recovery.
Caution: The term "increase" in older American statutes — particularly in the South and in chattel property contexts — frequently appears in discussions of enslaved persons as property. Historical legal sources used "increase" to describe the offspring of enslaved women as the property of the enslaver. Researchers working in this area must approach these materials with full awareness of that context and its moral dimensions. The legal doctrine of "increase" as applied to human beings was an extension of the same livestock-property logic and was foundational to the perpetuation of chattel slavery.
---
Historical Dictionary Support
Black's Law Dictionary (2nd Ed.) provides the core entry: produce of land and offspring of animals, with brief treatment of the affidavit and costs variants. The entry is concise and functional. Black's does not elaborate on the property-law implications of ownership of increase in tenancy or mortgage contexts, nor does it address the slavery application — an omission that reflects both the era of the dictionary and its focus on procedural and doctrinal black-letter rules.
Earlier common-law sources — particularly Blackstone and the agricultural tenancy literature — treat the produce of land in more detail as part of discussions of fixtures, emblements, and tenant rights. The offspring-of-animals rule (partus sequitur ventrem — offspring follows the womb) appears in Roman law antecedents and was transplanted directly into American property and slave law. Black's entry does not trace this lineage.
The costs-of-increase material is better illuminated by English procedural histories. The forty-shilling nominal jury award and the separate court-assessed costs were features of English common-law practice that carried into early American courts but were eventually displaced. Researchers needing depth on this procedural point should consult English procedural treatises of the 18th and 19th centuries rather than relying on Black's alone.
---
Jurisdictional Note
The costs-of-increase doctrine is substantially English and has no live application in modern American courts. The produce-of-land and offspring-of-animals meanings remain relevant in American property law but are addressed today through accession, fixture, and tenancy doctrines rather than under the label "increase." Southern states historically had the most developed body of case law on "increase" of animals as property, shaped in part by the intersection with slave law.
---