BILL OF COSTS

In England, the itemized statement of account for services rendered by a solicitor or attorney to his client. It is customary to render the items of this account in great detail, and it thereupon becomes the basis of the claim which the law gives the solicitor upon his client. Barristers have no legal claim for compensation, and hence are not privileged to render bills of costs.

In the United States, a bill of costs is an itemized statement of the statutory or other fixed costs of a suit, filed by the successful party, with the judgment. The bill is usually 'taxed,' i.e. verified and allowed, by the clerk of the court in which the judgment was rendered, and its amount thereupon becomes a part of the judgment.

BILL IN EQUITY

The original process instituting an action or proceeding in a court of chancery, corresponding to a declaration in an action at law, a libel in admiralty courts, or (in England) an allegation in a spiritual court. It is a complaint in writing addressed to the chancellor, giving the names of the parties to the suit, a statement of the matters on which the complainant relies, the allegations which he makes, an assertion that the matters complained of are contrary to equity, and a prayer for relief. The former practice in the English Court of Chancery was to address the petition to the lord chancellor, lord keeper, or lord commissioners for the custody of the great seal, unless the seal was in the King's hands, or the chancellor was the petitioner, when it was addressed to the King himself for, according to the theory of chancery, the plea was made to the King's conscience. Where the Crown was the suitor, complaint was by information. But by the Supreme Court Judicature Act of 1874 all suits now begin by writ. Formerly the several jurisdictions of the United States followed the old chancery pleadings, but in New York and other States which have adopted codes of civil procedure the same pleadings are now established for equity as for common-law actions. Instead of the elaborate bill, the first pleading is now a complaint or petition stating the facts "constituting the cause of action," with demand for judgment. In the non-code States the old bill is retained, though generally with statutory modifications.

A bill may be either original, as when it initiates an action, or not original, as when it supplements an original bill or is brought by a third party intervening in the suit. Bills are characterized according to the nature of the remedy sought, as "bill of peace," "bill of interpleader," "bill of discovery," etc.

BILL OF PAINS AND PENALTIES

An act of the Legislature, declaring a certain act to be a crime, and imposing punishment or a disability upon such as have previously committed the act. It differs from other penal legislation in that it is retroactive in its operation, making that to be an offense against the State which was not so at the time of its commission, or imposing a penalty which the offense did not involve when committed. Strictly speaking, it comprehends the bill of attainder; but, as commonly employed, it is limited to cases in which any penalty less than death is imposed by the statute, whereas the bill of attainder always creates a capital offense. Bills of pains and penalties are in general prohibited by the clause of the Constitution of the United States forbidding Congress and the several States from passing bills of attainder or ex post facto laws (Art. I., Sec. 9). But where the crime of treason, as defined in the Constitution, has been committed, Congress may, by a bill of pains and penalties, declare its punishment, so long as the attainder declared by the bill does not involve corruption of blood or forfeiture of estate beyond the life of the traitor (Art. III., Sec. 3).

BILL OF PARTICULARS

A written statement of the items of the demand upon which the plaintiff founds his action or the defendant his set-off or counterclaim. In some jurisdictions it must be filed with the pleading of the party; in others, only on request of the opposite party, or in response to an order of the court. It is generally conclusive on the party furnishing it. Consult the authorities referred to under the title PRACTICE.

BURDEN OF PROOF

This term has two significations in the law of evidence. First it means the obligation resting upon the party having the affirmative of the issue in a litigation to prove his case. In this sense, the burden of proof is generally upon the plaintiff. If, however, the defendant sets up an affirmative defense, the burden is upon him. An example of such a defense is afforded when an insurance company, sued upon a marine insurance policy, sets up as its only defense the unsea-worthiness of the insured ship. In such a case the defendant has the burden of proving that the ship was unseaworthy. Second, the term means the obligation to give evidence at some particular stage of the trial. For example, if the party having the affirmative of the issue has given evidence enough to entitle him to a judgment, the burden of giving further evidence rests upon his opponent. When the term is used in this sense, it is proper to say that the burden of proof shifts from one party to the other during the trial. When used in the first sense, it is incorrect to say that the burden of proof shifts. The burden of making out his case is always upon him who has the affirmative of the issue. Hence, in a criminal case, it is always upon the Government which is also bound to make out its case, i.e. to establish the guilt of the prisoner beyond a reasonable doubt. In civil cases, the one having the affirmative of the issue makes out his case if he convinces the jury that the preponderance of proof is on his side. Consult Thayer, Preliminary Treatise on Evidence at the Common Law (Boston, 1898). See EVIDENCE; PROOF.