COSTS. The expenses incurred by the parties in the prosecution or defence of a suit.
They are distinguished from fees in being an al lowance to a party for expenses incurred in con ducting his suit; whereas fees are a compensation to an officer for services rendered in the progress of the cause. Musser v. Good, U S. & It. (Pa.) 248. No costs were recoverable by either plaintiff or de fendant 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 ; Jor dan v. Woollen Co., 3 Cliff. 239 ; Fed. Cas. No. 7,516. This was before the Revised Stat utes but the fee bill of 1853 which was then under consideration by that court does not differ in any important respect from the ap propriate 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. 18,284 ; The Baltimore, 8 Wall. (U. S.) 388, 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 ; 3 Burr. 1287; Com. v. Tilghman, 4 S. & R. (Fa.) 129; Parry v. Thomson, 1 Rich. (S. 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 ; Irwin v. Commissioners of Northumberland County, 1 S. & R. (Pa.) 505 ; U. S. v. Barker, 2 Wheat. (U. S.) 395, 4 L. Ed. 271; U. S. v. Boyd, 5 How. (U. S.) 29, 12 L. Ed. 36 ; Collier v. Powell, 23 Ala. 579 ; State v. Kinne, 41 N. H. 238 ; State v. Harrington, 2 Tyler (Vt.) 44 ; and in actions of a public nature, con ducted solely for the public benefit, costs are rarely given against public officers ; Cas sady v. Trustees of Schools, 94 Ill. 589 ; Clare County v. Auditor General, 41 Mich. 182, 1 N.
W. 926; Avery v. Slack, 19 Wend. (N. Y.) 50. This exemption is founded on the sov ereign character of the state, which is sub ject to no process ; 3 Bla. Com. 400 ; McKee han v. Com., 3 Pa. 153. But in Missouri v. Illinois, 202 U. S. 598, 26 Sup. Ct. 713, 50• L. Ed. 1160, it was said: "So far as the dig 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. 812, 34 L. Ed. 112. Rule 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 convic tion 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 cases, 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 enti tled to recover them ; 8 East 28, 347 ; 2. Price 19 ; 4 Bingh. 169 ; Cooper v. Coats; 1 Dall. (U. S.) 308, 1 L. Ed. 150 ; Buttner v. Neil, 1 Dall. (U. S.) 457, 1 L. Ed. 222 ; Stew art v. Mitchell's Adm'rs, 13 S. & R. (Pa.) 287.
When a case is dismissed for want of ju risdiction over the person, no costs are al lowed to the defendant unless expressly giv en 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. 417, Fed. Cas. No. 2,177; Bank of Cum berland v. Willis, 3 Sumn. 473, Fed. Cas. No. 885 ; Clark v. Rockwell, 15 Mass. 221; Banks v. Fowler, 3 Litt. (Ky.) 332; Eames v. Car lisle; 3 N. H. 130; Paine v. Commissioners,. Wright (Ohio) 417.