COSTS. In Practice. The expenses incurred by the parties in the prosecution or defence of a suit at law.
They are distinguished from fees in being an allowance to a party for expenses incurred in conducting his suit; wbereas fees are a compensa tion to an officer for services rendered in the pro gress of the cause. 11 Berg. & R. Penn. 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. e. 1, which has been substantially adopted in all the United States.
2. A party can in no case recover costs from his adversary unless he can show some statute which gives him the right.
Statutes which give costs are not to be ex tended beyond the letter, but are to be con strued strictly. Salk. 206; 2 Strange, 1006, 1069 ; 3 Burr. 1287 ; 4 Binn. Penn. 194 ; 4 Serg. & R. Penn. 129 ; 5 id. 344; 1 Rich. So.
C. 4.
They do not extend to the government; and therefore when the United States, or one of the several states, is a party, they neither pay nor receive costs, unless it be so expressly provided by statute. 1 Serg. & R. Penn. 505 ; 8 id. 151 ; 3 Cranch, 73 ; 2 Wheat. 395 ; 12 id. 546 ; 5 How. 29. This exemption is founded on the sovereign character of the state, which is subject to no process. 3 Shorewood, Blackst. Comm. 400 ; Cowp. 366 ; 3 Penn. St. 153.
3. 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 ver dict 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 an whieb, the verdict has been reduced below the sum specified in the act. In such cases, the general rule is that if the amount he re duced 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. 2 Strange, 1911 ; 1 Wils. 19 ; 3 id. 48 ; 3 Dougl. 448 ; 9 Moore, Priv. Conn. 625; 2 Chitt. Bail. 394; 8 East, 28, 347 ; 2 Price, Exch. 19 ; 1 Taunt. 60 ; 4 Bingh. 169 ; 1 Dall. Penn. 308, 457. 2 id. 74 ; 3 Serg.
& R. Penn. 388 ; 13 id. 287 ; 16 id. 253 ; 4 Penn. St. 330.
4. When a case is dismissed for want of jurisdiction over the person, no costs are al lowed 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. 2 Woodb. & M. C. C. 417 ; 1 Wall. Jr. C. C. 187 ; 2 Wheat. 363 ; 9 id. 650 ; 3 Sumn. C. C. 473 ; 15 Mass. 221; 16 Penn. St. 200; 4 Dell. Penn. 388 ; 3 Litt. Ky. 332 ; 2 Yerg. Tenn. 579 ; Wright, Ch. Ohio, 417 ; 1 Vt. 48S; 2 Halst. N. J. 168.
In equity, the giving of costs is entirely discretionary, as well with respect to the pe riod at which the court decides upon them as with respect to the parties to whom they ars given.
5. In the exercise of their discretion, courts of equity are generally governed by certain fixed princiaples which they have adopted on the subject of costs. It was the rule of the civil law that victus victui in expensis condera natus 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 cir cumstances to displace the prima facie claim to costs given by success to the party who prevails. 3 Daniell, Chem. Pract. 1515 1521.
6. An executor or administrator suing at law or in equity in his representative capa city 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. 11 Serg. & R. Penn. 47 ; 15 id. 239 ; 23 Penn. St. 471. But the rule is otherwise where vexatious litiga tion is caused by the executor or adminis trator, and where he has been guilty of fraud or misconduct in relation to the suit. 5 Binn. Penn. 138 ; 7 Penn. St. 136, 137 ; 3 Penn. L. J. 116.
See DOUBLE COSTS • TREBLE COSTS. Consult Brightly, Hulloch, Merrifield, Sayer, Tidd, Costs; the books of practice adapted to the laws of each state ; Bouvier, Institutes, Index, this title.