costs

the mere declaration of the state statute could not alter the true nature of the obligation... The amount so demanded became part of the matter put in controversy by the complaint, and not mere 'costs' excluded from the reckoning by the jurisdictional and removal statutes

A pecuniary allowance made by positive law to the successful party to a suit, or to some distinct proceeding in a suit in consideration of, and to reimburse, his probable expense. Abbott. See 4 N. M. 356. At common law, there were no costs by name, but when the plaintiff failed, he was amerced for presenting a false claim, and, when judgment was rendered against defendant, he was fined for resisting the just claim of plaintiff. Costs as allowed by statute in modern practice are the amount allowed the prevailing party in lieu of the common-law fines. The term is to be distinguished from "disbursements," which includes the amounts paid out by the prevailing party for certain purposes incident to the suit, and allowed to him as part of his recovery. 23 Ore. 451. See "Double 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'. S.. 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.

A pecuniary allowance, made to the successful party, (and recoverable from the losing party,) for his expenses in prosecuting or defending a suit or a distinct proceeding within a suit. Apperson v. Insurance Co., 38 N. J. Law, 388; Stevens v. Bank, 168 N. Y. 560, 61 N. E. 904; Bennett v. Kroth, 37 Kan. 235, 15 Pac. 221, 1 Am. St. Rep. 248; Chase v. De Wolf, 69 III. 49; Noyes v. State, 46 Wis. 250, 1 N. W. 1, 32 Am. Rep. 710. Costs and fees were originally altogether different in their nature. The one is an allowance to a party for expenses incurred in prosecuting or defending a suit; the other, a compensation to an officer for services rendered in the progress of a cause. Therefore, while an executor or administrator was not personally liable to his adversary for costs, yet, if at his instance an officer performed services for him, he had a personal demand for his fees. Musser v. Good, 11 Serg. & It. (Pat) 247. There is in our statute a manifest difference between costs and fees in another respect. Costs are an allowance to a party for the expenses incurred in prosecuting or defending a suit,—an incident to the judgment ; while fees are compensation to public officers for services rendered individuals not in the course of litigation. Tillman v. Wood, 58 Ala. 579. In England, the term is also used to designate the charges which an attorney or solicitor is entitled to make and recover from his cllent, as his remuneration for professional services, such as legal advice, attendances, drafting and copying documents, conducting legal proceedings, etc.

— Bill of costs. A certified, itemized statement of the amount of costs in an action or snit.

— Certificate for costs. In English practice, a certificate or memorandum drawn up and signed by the judge bsfore whom a case was tried, setting out certain facts, the existence of which must be thus proved bsfore the party is entitled, under the statutes, to recover costs.

— Cost bond, or bond for costs. A band given by a party to an action to secare the eventual payment of such costs as may be awarded against him.

— Costs de incremento. Increased costs, costs of increase. Cosis adjudged by the court in addition to those assessed by the jury. Day v. Woodworth, 13 How. 372, 14 L. Ed. 181. Those extra expenses incurred which do not appear on the face of the proceedings, such as witnesses' expenses, fees to counsel, attendances, court fees, etc. Wharton

— Costs of the day. Costs which are incurred in preparing for the trial of a cause on a specified day, consisting of witnesses' fees, and other fees of attendance. Archb. N. Prac. 281.

— Costs to abide event. When an order is made by an appellate court reversing a judgment, with "costs to abide the event," the costs intended by the outer include those of the appeal, so that, it the appellee is finally successful, he is entitled to tax the costs of the appeal. First Nat. Bank v. Fourth Nat. Bank, 84 N. Y. 469,

— Double costs. The ordinary single costs of suit, and one-half of that amount in addition. 2 Tidd, Pr. 987. "Double" is not used here in its ordinary sense of "twice" the amount. Van Aulen v. Decker, 2 N. J. Law, 108; Gilbert v. Kennedy, 22 Mich. 19. But see Moran v. Hudson, 34 N. J. Law, 531. These costs are now abolished in England by St. 5 & 6 Viet. c. 97. Wharton.

— Final costs. Such costs as are to be paid at the end of the suit; costs, the liability for which depends upon the final result of the litigation. Goodyear v. Sawyer (C. C.) 17 Fed. 8.

— Interlocutory costs. In practice. Costs accruing upon proceedings in the intermediate stages of a cause, as distinguished from final costs; such as the costs of motions. 3 Chit. Gen. Pr. 507; Goodyear v. Sawyer (C. C.) 17 Fed. 6.

— Treble costs. A rate of costs given in certain actions, consisting, according to its technical import, of the common costs, half of these, and half of the latter. 2 Tidd, Pr. 988. The word "treble," in this application, is not understood in its literal sense of thrice the amount of single costs, but signifies merely the addition together of the three sums fixed as above. Id. Treble costs have been abolished In England, by St. 5 & 6 Viet. c. 97. In American law. In Pennsylvania and New Jersey the rule is different. When an act of assembly gives treble costs, the party is allowed three times the usual costs, with the exception that the fees of the officers are not to be trebled when they are not regularly or usually payable by the defendant. Shoemaker v. Nesbit, 2 Rawle (Pa.) 203; Welsh v. Anthony, 16 Pa. 256; Mairs v. Sparks, 5 N. J. Law, 516.

— Security for costs. In practice. A security which a defendant in an action may require of a plaintiff who does not reside within the jurisdiction of the court, for the payment of such costs as may be awarded to the defendant. 1 Tidd, Pr. 534. Ex parte Louisville & N. R. Co.., 124 Ala. 547, 27 South. 239.

The expenses incurred in the prosecution or defense of an acinents as are alloxved bylaw. Costs between attorney and client: costs payable in every case to the attorney or solicitor, by his client, whether he ultimately succeeds or not Costs between party and party: costs which the defeated party pays to the successful one. V. Final cosfs; Interlocutory costs. Costs de Incremento: costs of increase, — costs adjudged in addition to costs found by the jury. V. De incremento; Increase. Costs of the day: costs which are incurred in preparing for the trial of a cause on a specified day.

A pecuniary allowance, made to the successful party, (and recoverable from the losing party,) for his expenses in prosecuting or defending a suit or a distinct proceeding within a suit. Costs and fees were originally altogether different in their nature. The one is an allowance to a party for expenses incurred in prosecuting or defending a suit; the other, a compensation to an officer for services rendered in the progress of a cause. Therefore, while an executor or administrator was not personally liable to his adversary for costs, yet, if at his instance an officer performed services for him, he had a personal demand for his fees. 11 Serg. & R. 247. There is in our statute a manifest difference between costs and fees in another respect. Costs are an allowance to a party for the expenses incurred in prosecuting or defending a suit, — an incident to the judgment; while fees are compensation to public officers for services rendered individuals not in the course of litigation. 58 Ala. 579. In England, the term is also used to designate the charges which an attorney or solicitor is entitled to make and recover from his client, as his remuneration for professional services, such as legal advice, attendances, drafting and copying documents, conducting legal proceedings, etc.

[L. Lat. custus, misce; Lat. expensce litis; L. Fr. costages."] In practice. The expenses which are incurred either in the prosecution or defence of an action, or m any other proceeding at law, or in equity; consisting of the fees of attomies, solicitors and other ofl Bcers of court, and such disbursements as are allowed by law.* Stat. Qlocest. 6 Edto. I. c. 1. 2 Inst. 288. Beames' Costs, 4. 2 Tidd's Pr. 945, et seq. U. S. Digest, and Supplement, Costs. Costs between attorney and client are those which are payable in every case to the attorney or solicitor, by his client, whether he ultimately succeed or not. Costs between party and party are those which the defeated party pays to the successful one. ffolthouse. W/iarton. Costs are also either final or interlocutory. See Final costs. In* terlocutory costs.

practice, the expenees of a suit or action which may be recovered by lawfrom the losing party. At common law neither the plaintaff nor the defendant could recover costs eo nomine, but in all actions in which damages were recoverable, the plaintiff in effect recovered his costs wher he obtained a verdict, for the jury always computed them in the damages. When the defendant obtained a verdict, or the plaintiff became noa suit, the former was wholly without remedy for any expenses he had incurred; it is true the plaintiff was amerced pro falso clemore suo, but the amercement was given to the king. Hull. on Costs, 2; 2 Arch. Pr. 281. This defect was afterwards corrected by the statate of Gloucester, 6 Ed. 1, c. 1, by which it is enacted that “the demandant in assise of novel disseisin,.in writs of mort d’ancestor, costnage, atel and besail, shall have damages. And the demandant shall have the costs of the writ purchased, together with damages, and this act shall hold place in all cases where the party recovers damages, and every person shall render damages where land is recovered against him upon his owa intrusion or his own act.” This statute has been adopted substantially in all the United States. Though it speaks of the costs of the writ only, it has by construction been extended to the costs of the suit generally. The costs which are recovered under it are such as shall be allowed by the master or prothonotary upon taxation, and not those expenses: which the plaintiff may have incurred for himself or the extraordinary fees he may have paid counsel, or for the loss of his time. 2 Sell. Pr. 429. -Costs are single; tained by taxation; double, vide Double costs; and treble, vide Treble costs. Vide generally, Hullock on Costs; Sayer’s Law of Costs; Tidd’s Pr. c. 40; 2 Sell. Pr. c. 19; Archb. Pr. Index, h. t.; Bac. Ab. h. t.; Com. Dig. h. t.; 6 Vin. Ab. 821; Grah. Pr. c. 23; Chit. Pr. h. t.; 1 Salk. 207; 1 Supp. to Ves. Jr. 109; Amer. Dig. h. t.; Dane’s Ab. h. t.; Harr. Dig. h.t. As to the liability of executors and administrators for costs, 1 Chit. R. 628, note; 18 E. C. L.R. 185; 2 Bay’s R. 166, 399; J Wash. R. 138; 2 Hen. & Munf. 361, 869; 4 John. R. 190; 8 John. R. 389; 2 John. Ca. 209. As tocosts inactions quit tam, see Esp. on Pen. Act. 154 to 165.