Costs

The expenses incurred by the parties in the prosecution or defence of a suit. They are distinguished from fees in being an allowance to a party, for expenses incurred in conducting his suit; whereas fees are a compensation to an officer for services rendered in the progress of the cause.

Musser v. Good, 11 S. & R. (Pa.) 248.

No costs were recoverable by either plaintiff or defendant at common law. They were first given to plaintiff by the statute of Gloucester, 6 Edw. I. c. 1, which has been substantially adopted in all the United States. The ultimate power to impose costs must be found in a statute. This may be granted by the legislature in general terms to the courts who may then establish a fee bill. This grant has been made by congress; Jordan v. Woollen Co., 3 Cliff. 239; Fed. Cas. No. 7,516. This was before the Revised statutes but the fee bill of 1853 which was then under consideration by that court does not differ in any important respect from the appropriate sections of the Revised Statutes; Tesla Electric Co. v. Scott, 101 Fed. 524. The cases are collected in Kelly v. Ry. Co., 83 Fed. 183, and the various statutes are cited in Hathaway v. Roach, Fed. Cas. No. 6,213; Costs in Civil Cases, Fed. Cas. No. 18.2S4; The Baltimore, 8 Wall. (U. S.) 38S, 19 L. Ed. 463. Statutes which give costs are not to be extended beyond the letter, but are to be construed strictly; 2 Stra. 1006, 1069; 8 Burr. 12S7; Com. v. Tilghman, 4 S.,& R. (Pa.) They do not extend to the government; and therefore when the United States, or one of the several a party they neither pay nor receive costs, unless it be so expressly provided by statute; Irwin v. Commissioners of Northumberland County, 1 S. & R. (Pa.) 505; D. S. v. Barker, 2 v. (U. S.)."'J.j, 4 L. Ed. 271; L'.

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How. (U. S.) 29, 12 L. Ed. 36; Col. Powell, 23 Ala. 579; State v. Kinne, 41 N. 3; State v. Harrington, - (Vt) 41; and in actions of a public nature, ducted solely for the public benefit, are rarely given against public office! >:ifly v Trustees of Schools, 94 111. uUUty v# Auditor General, -11 Mich. 182, 1 N. YV. 926; Avery v. Slack, 19 Wend. (N. V.i 50. This exemption is founded on the sovereign character of the state, which If ject to no process; 3 Bla. Com. 400; M< Keehan v. Com., 3 Pa. 153. Bat in Missouri v. Illinois, 202 U. S. 598, 26 Sup. Ct 713, 50 L. Ed. 1160, it was said: "So far as ti. nity of the state is concerned, that is its own affair. The United States has not been above taking costs." U. S. v. Sanborn, 135 U. S. 271, 10 Sup. Ct. S12, 34 L. Ed. 112. Bale 24 of the Supreme Court of the United States provides that no costs shall be allowed to or against the United States in equity. The king neither receives nor pays costs; (1785) T. R. 86. The right of the state to costs on conviction in criminal cases is generally declared by statute. In many cases, the right to recover costs is made to depend, by statute, upon the amount of the verdict or judgment Where there is such a provision, and the verdict is for less than the amount required by statute to entitle the party to costs, the right to costs, in general, will depend upon the mode in which the verdict has been reduced below the sum specified in the act. In such • the general rule is that if the amount be reduced by evidence of direct payment, the party shall lose his costs; but if by set-off or other collateral defence he will be entitled to recover them; 8 East 2S, 347; - Price 19; 4 Bingh. 169; Cooper v. Coats, 1 Dall. (U. S.) 30S, 1 L. Ed. 150; Bunner v. Neil, 1 Dall. (U. S.) 457, 1 L. Ed. 222: stewart v. Mitchell's Adm'rs, 13 S. & R. (Pa.) 287. When a ease is dismissed for want of jurisdiction over the person, no costs are allowed to the defendant unless expressly given by statute. The difficulty in giving costs, in such case, is the want of power. If the case be not legally before the court, it has no more Jurisdiction to award costs than it has to grant relief; Burnham v. Rangeley, 2 W. & M. 117, Fed. Oaa No. 2,177; Bank of Cumberland v. Willis. 3 Sumn. 47.°.. Fed. Cas. No. 885; Clark v. Rockwell. 15 Mass. 221; Banks v. Fowler, 3 Litt. (Ky.) 332; Barnes v. Oarlisle, 3 N. II. 130; Paine v. Commissioners, In equity, the giving of costs is entirely discretionary, as well with respect to the period at which the court decides upon them as with respect to the parties to whom they are given. In the exercise of their discretion, courts of equity are generally governed hy certain fixed principles which they have adopted on the subject of costs. It was the rule of the civil law that vicius victori in expensis condemnatus est; and this is the general rule adopted in courts of equity as well as in courts of law, at least to the extent of throwing it upon the failing party to show the existence of circumstances to displace the prima facie claim to costs given by success to the party who prevails; 3 Dan. Ch. Pr. 1515. In patent cases in equity costs will not be allowed a plaintiff where some of the claims are withdrawn at the argument and some adjudged invalid, though others are sustained; Thomson-Houston Electric Co. v. R. Co., 71 Fed. 886. An executor or administrator suing at law or in equity in his representative capacity is not personally liable to the opposite party for costs in case he is unsuccessful, if the litigation were carried on in good faith for the benefit of the estate; Gratz v. Bayard, 11 S. & R. (Pa.) 47; Calender's Adm'r v. Ins. Co., 23 Pa. 471. But the rule is otherwise where vexatious litigation is caused by the executor or administrator, and where he has been guilty of fraud or misconduct in relation to the,suit; 1 Wnis. Exec. 451; Show v. Conway, 7 Pa. 136, 137. Costs, when recovered, belong to the client; Celluloid Mfg. Co. v. Chandler, 27 Fed. 12. In divorce, the wife's costs can be taxed de die in diem; Graves v. Cole, 19 Pa. 171, citing 2 Hagg. Cons. 204. Ordinarily an appeal does not lie from a decree for costs only in a chancery suit; but there are exceptions to the rule, turning on the question of the discretionary power of the trial court respecting costs. A decree for such costs as are discretionary is not appealable, but one for costs not in the discretion of the court is appealable if the amount is sufficient to confer jurisdiction; Nutter v. Brown, 58 W. Va. 237, 52 S. E. 88, 1 L. R. A. (N. S.) 10S3, 6 Ann. Cas. 94. See Double Costs; Treble Costs; Surety Company; Actual.