quittal in a criminal prosecution, means only costs that have accrued at the trial, and does not include costs which have previously been adjudged against the party. ham, 63 Mo. 258.

Costs of appeal and new trial.

As used in Code, c. 13, § 2182, which provides that an undertaking for stay of proceedings on appeal to the circuit court from a justice's court must be in such an amount as may be deemed sufficient to compensate plaintiff for the use or profits of the claim during the pendency of the appeal, and for costs and disbursements of the action, the words "costs and disbursements of the action" must be construed to mean that the undertaking includes all costs and disbursements that may be awarded against the appellant on the appeal, and is not limited to include only the costs and disbursements of the trial in the justice's court. "Costs and disbursements of the action" must certainly mean the costs and disbursements which will accrue in the trial of the action, as well as those which have already accrued. Bilyeu v. Smith, 22 Pac. 1073, 1074, 18 Or. 335.

The words "with costs," in an order of reversal or affirmance in the Court of Appeals in a case where the allowance of costs is discretionary, means costs in the Court of Appeals only, and the Supreme Court has no power to allow costs after such a disposition of the case. In re Hood's Estate, 1 N. Y. Supp. 833, 49 Hun, 608 (citing In re Commissioners, 10 N. E. 545, 104 N. Y. 677).

Where a judgment in the Supreme Court provides that "appellants recover of appellee all costs in this behalf expended," such phrase means the recovery of costs of appeals in both the supreme and district courts. Bonner v. Wiggins, 54 Tex. 149, 150.

As costs on behalf of the state.

The word "cost," for which a person may be sentenced to hard labor, has been judicially declared. It includes all costs, including officer's fees incurred in behalf of the state. It does not include fees due witnesses summoned on behalf of defendant, or costs incurred by him in making his defense. Bowen v. State, 12 South. 808, 98 Ala. 83; Bradley v. State, 69 Ala. 318, 321. Such is its meaning in the statute authorizing the clerk of the criminal court to be paid the costs out of the fine and forfeiture fund when the defendant is acquitted (Burgin v. Hawk

ins, 14 South. 771, 772, 101 Ala. 326), and as

used in Code, §§ 4502, 4504, which permits one accused of a misdemeanor to confess judgment with good and sufficient sureties for the fine and costs (Bowen v. State, 12 South. 808, 809, 98 Ala. 83).

As costs of prosecution.

The term "costs," in Mills' Ann. St. § 699, providing that costs in criminal cases shall

An indemnity bond, after reciting that an obligee had levied on certain property by virtue of an execution as belonging to the judgment creditor, and that the property had been replevied by D., contained the condition that if the sheriff should defend the replevin suit the obligor would indemnify and save him from all costs, charges, and expenses that he should incur in defending the suit. Held, that the term "all costs, charges, and expenses in defending the suit" meant expenses of the defense strictly, and hence did not include the damages and costs recovered by D. by reason of the wrongful levy. Scott v. Tyler (N. Y.) 14 Barb. 202, 205.

Costs are in the nature of damages, and, as damages and interest, are considered in some sense as the same. Douglass v. McCoy, 24 W. Va. 722, 727 (citing McRea v. Brown [Va.] 2 Munf. 46, 48).

Although costs were never given at the common law by the name of "costs," yet in reality they were also included in the quantum of damages in actions where damages were given, and in such cases were assessed by the jury. Aller v. Shurts, 17 N. J. Law (2 Har.) 188.

A statute providing that on the trial of the traverse of an indictment for a forcible entry and detainer, if the traverse be taken and tried against the person indicted, the person convicted shall pay such "costs and damages" to the party complaining as shall be assessed by the justices or justice before whom the same is tried, does not permit of the restitution may impose on the party the the construction that the justice who awards payment of a gross sum in "damages" as contradistinguished from "costs." The word "damages" is considered in law in two several significations, the one properly and generally, the other relatively; properly, when damages are founded on the statutes where

costs are included within the word "dam

ages," and taken as damages; relatively, when the injury declared on existed before the writ brought, and is the foundation of the suit-in such case damages do not mean "costs." Fitch v. People (N. Y.) 16 Johns. 141, 142.

The statute of Gloucester, 6 Edw. I, c. 1 (A. D. 1279), has usually been considered as creating the right to recover costs, and hence

the maxim that "costs are recoverable only by statute." That the right to costs is a creature of the statute is generally, but not exclusively, correct. Even before the statute of Gloucester, in cases where damages were recovered, a compensation equivalent to costs was assessed by the jury and included in the quantum of damages. Eft v. Reeve, 31 N. J. Law (2 Vroom) 139, 140.

As debt.

As debt contracted, see "Debt."

Expenses.

In judgment for as debt, see "Debt."

Disbursements distinguished.

"There seems to be no little confusion, even in the books, in the use of the terms 'costs' and 'disbursements,' one sometimes being used for the other; and we must look to the sense in which those terms are intended to be used, more than to their strict, technical signification. The theory seems to have been that the fees of the several officers of court, as well as the witnesses, would be paid by the party at the time he called their services into requisition, and, when that is done, the amounts thus paid would properly constitute disbursements; but, unless this is done, we do not see how such fees would be properly classed as disbursements, when nothing has been disbursed; and, in such case, which very frequently occurs, we do not see why such fees may not properly be taxed as costs due to the several officers of court. Indeed, we suppose that a good deal of the confusion in the use of the terms 'costs' and 'disbursements' has arisen from the conflict between the theory and the practice; the theory being that the fees of the several officers of court and the witnesses are paid by the plaintiff or defendant, as the case may be, at the time the services are rendered, in which case they would very properly be termed 'disbursements,' and taxed as such, in order to reimburse the party for the outlay he has been required to make, while the practice in many cases is that such fees are not paid at the time, but, remaining due to the several officers at the termination of the action, are taxed as costs due to such officers." Dauntless Mfg. Co. v. Davis, 24 S. C. 536, 541.

In general use, the term "costs," when employed with reference to litigation, embraces both disbursements and specific sums allowed by statute as indemnity to the prevailing party for his expenses. In a narrower sense, the term "costs" excludes disbursements. Giving the term its most liberal signification, it could embrace only the taxable costs and disbursements in an action. Hegar v. De Groat, 3 N. D. 354, 358, 56 N. W. 150.

had terminated in his own county. Held, that the word "costs," in section 2, should be construed to mean "expenses," and that the county in which the action was begun was liable on change of venue for all "expenses" incurred by the trial court by reason of the change, including current expenses of the court, as well as those for which it was already liable-the costs of the cause. Hempstead County v. Royston, 23 S. W. 650, 651, 58 Ark. 113.

Rev. St. 1852, which entitles the plaintiff to the costs and expenses of prosecuting condemnation proceedings when the company, by its neglect or omission, has compelled the plaintiff to institute the same, includes all necessary expenditures in that behalf, and is not limited to what would be taxable costs in an action. Taylor v. Chicago, M. & St. P. Ry., 53 N. W. 853, 855, 83 Wis. 645.

The word "costs" imports the expenses of the suit, which may be recovered by law from the losing party. Schlesinger v. Arline, 31 Fed. 648, 651 (citing Bouv. Law Dict.).

The word "costs," as used in Civ. Code, § 2778, subds. 3, 4, relating to costs of the litigation, is used in an extended sense, and includes all things which are necessary in order to make the litigation effectual. Showers v. Wadsworth, 22 Pac. 663, 665, 81 Cal. 270.

Gen. St. 969, provides that sureties on the recognizance of a person charged with a criminal offense may, at any time before judgment is rendered against them, seize and surrender such person to the sheriff of the county in which the recognizance was taken, and that the sheriff shall take such person into custody, and acknowledge in writing his surrender, and that the sureties shall thereupon be discharged on payment of all costs. Held, that the word "costs" includes not only the costs taxable by the clerk, and the fees which the sheriff is entitled to receive for the service and return of the papers, but also all expenses the law officers might legitimately pay out, or have a right to charge in connection with the capture and return of the criminal for trial. Ayres v. Peo ple, 32 Pac. 77, 78, 3 Colo. App. 117.

Pub. St. c. 227, § 7, relating to the release of poor tort debtors upon petition to any justice of the Supreme Court, the last provision of which is as follows, "provided, however, that any person who shall have been imprisoned as aforesaid upon a writ issued out of the justice court or upon execution wherein the debt of damages and costs shall not exceed one hundred dollars," etc., means the costs specified in the execution itself, and does not include the prisoner's board in jail. In re Millard, 13 R. I. 178, 179.

The term "costs," as used in the provisions of the Code requiring the state and county to pay, in certain criminal proceedings, all costs accruing under existing laws on behalf of the state or county, as the case may be, for the faithful prosecution and safekeeping of the defendant, includes the cost of boarding juries and that of the jailer. Shannon's Code Tenn. 1896, § 7622.

The word "costs," used in sections 5, 7, St. 1834, relating to the impounding of beasts running at large, is not used in reference to any claim that may be made by the impounder, but refers to those undefined expenses which may arise during the afterproceedings required by the statute. Palmer v. Spaulding, 17 Me. (5 Shep.) 239, 243.

The word "costs," as used in an assignment of a policy to secure notes, which provided that if the policy matured before payment, and the assignee would pay to the beneficiary the balance of the policy, less "costs of collecting the same," does not refer to the court costs, but to the expenses which the assignee might incur in collecting the policy. Ballinger v. Connecticut Mut. Life Ins. Co., 91 N. W. 767, 768, 118 Iowa, 23.

Expense of reference.

The term "costs," as applied to a reference to hear, try, and determine, made on a stipulation in an action in the Supreme Court, with a provision that costs of the reference shall be taxed, has no defined legal meaning. We think the import of these words is the ordinary expenses incident to reference, namely, disbursements, referee's fees, witness' fees, and other proper charges, as upon the trial of a case. Nichols v. Moloughney, 82 N. Y. Supp. 949, 950, 85 App. Div. 1.

The word "costs" as used in an award of arbitrators, allowing a certain sum in full of all damages and costs, means legal costs to be recovered in a suit, and not the expenses of a reference. Buckley v. Ellmaker (Pa.) 13 Serg. & R. 71, 79.

Extra allowance.

The term "costs" does not include an extra allowance, and therefore a direction by an appellate court, on the remand of a cause, to allow costs to a party, does not authorize

an extra allowance by the trial court. Hascall v. King, 66 N. Y. Supp. 1112, 1114, 54 App. Div. 441.

Fees distinguished.

"Costs and fees" are altogether different in their nature generally. The one is an al lowance to a party of expenses incurred in the successful transaction or defense of a suit. The other is compensation to an officer for services rendered in the progress of the cause. Bradley v. State, 69 Ala. 318, 321; Howard Building & Loan Ass'n v. Philadelphia & R. R. Co., 102 Pa. 220, 222; Musser V. Good (Pa.) 11 Serg. & R. 247; Crawford v. Bradford, 2 South. 782, 783, 23 Fla. 404.

Costs are an allowance to a party for the expenses incurred in prosecuting or defending a suit, and incident to the judgment. There is a manifest difference between costs and fees. Fees are compensation to public officers for services rendered individuals, not in the course of litigation. Tillman v. Wood, 58 Ala. 578, 579.

The word "costs" is a word of known legal signification. It signifies, when used in relation to the existence of legal proceedings, the sums prescribed by law as charges for the services enumerated in the fee bill. The terms "fees and costs" are often used interchangeably, as having the same application; but, accurately speaking, the term "fees" is applicable to the items chargeable by law as between the officers or witnesses, and the party whom he serves, while the term "costs" has reference to the expenses of litigation as between litigants. Alexander v. Harrison, 28 N. E. 119, 120, 2 Ind. App. 47.

As part of fine or judgment.
See "Fine"; "Judgment."
Master's costs.

The term "costs," as used in Rev. St. 1893, § 2548, as amended by the act of 1897 providing that, when the property sought to be partitioned does not exceed $1,000 in value, the costs shall be one-half of the costs allowed when the value exceeds that sum, and declaring that this provision shall apply to all costs in the cause, includes fees allowed the officers, including the commission allowed to the master for making the sale, for, as the act stood before the amendment in 1897, there was an exception of clerk's and sheriff's costs, and the term manifestly was intended to include clerk's and sheriff's fees, and thus indicates an intention to include all officers' fees. Bryan v. Ream, 37 S. E. 921, 59 S. C. 340.

The compensation of a master, as respects the party who has it to pay, is costs. and not a fee. As an item of expense in an equity case, the master's fee is included in the general costs of the suit. Bradley v. West Chester St. Ry. Co., 28 Atl. 500, 160 Pa. 72.

Payment of judgment.

An employer's liability insurance policy providing that, if any legal proceedings are taken against the assured to enforce a claim for damages on account of an accident, the insurer will defend the same, "at its own cost," in the name and on behalf of the assured, cannot be interpreted to mean not only that the insurer should assume all the expense of defending the suit, but would also pay any judgment that might be recovered. Rumford Falls Paper Co. v. Fidelity & Casualty Co., 43 Atl. 503, 505, 92 Me. 574.

Receiver's and trustee's costs.

The costs of a receiver in an action where goods are attached are to be included in the term "costs" taxable against the person against whom judgment is rendered, though not as technical costs taxed by law under statutory fee bills. Hetterman v. Young (Tenn.) 61 S. W. 1085, 1087.

Upon the final determination of the case, in which a receiver has been appointed, the amount of the receiver's compensation is generally held to be a part of the costs in the

cause and fall within the meaning of the term "cost," which are awarded to the prevailing party. McAnrow v. Martin, 56 N. E. 168, 170, 183 Ill. 467 (citing City of St. Louis v. St. Louis Gaslight Co., 11 Mo. App. 241, Id. 87 Mo. 223).

An order that costs and expenses of a certain suit, brought to enjoin creditors' proceedings against an estate, shall be paid out of the fund in court, includes the necessary funds for carrying on a planting interest on the estate intrusted to the receiver, the hire of laborers, the commissions of the receiver, and the disbursements incident to the discharge of his duties. Ball v. Vason, 56 Ga. 264.

Within the provisions of a decree foreclosing a mortgage on railroad property, and directing an application of the funds, first, to the payment of expenses attendant on the sale; second, to the payment of the costs of this suit, etc.; third, to the payment of all interventions or other claims allowed by this court the expense of managing the road by the receiver are not strictly costs of suit; yet they are expenses incurred in the litigation, and by order of the court, and may properly be included within the meaning of the words "costs of suit," if, when property is attached or seized by the officers under process of law, the expenses of preserving the property and the litigation are charged as costs of the suit, so that certificates issued for such expenses come within class 2. Farmers' Loan & Trust Co. v. Stuttgart & A. R. R. Co. (U. S.) 106 Fed. 565, 570.

As taxable costs.

Under a statute providing that the defendant may tender the debt and costs be

fore the return day of the writ, and that such tender shall be a bar to any further proceedings in the case (Gen. St. c. 272, § 5; Id. c. 208, § 1), the costs the defendant must tender in order to avail himself of the advantages of the statute are such costs as the law has prescribed-the costs taxable in court. These are the only involuntary costs known to the law, which is to be interpreted as having provided that, if the party will settle the suit against him before entry in court, he shall be required to pay to the plaintiff's attorney just as much, and no more, for all the costs that are chargeable, before or after the action, as if he paid the same costs after entry. Woodward v. Roberts, 51 N. H. 552, 555.

The term "costs," as used in Rev. St. c. 45, § 35, giving the defeated party in an action the right to a new trial on payment of all costs, means the costs as taxed by the clerk and entered in the feebook. Cook County v. Calumet & C. Canal & Dock Co. (Ill.) 19 N. E. 46, 47.

"Costs," as used in Code, tit. 10, § 310,

directing the clerk to add the interest on a verdict for money to the costs of the party entitled thereto, refer to the bill of costs, and not to the gross allowance. Belding v. Conklin (N. Y.) 2 Code Rep. 112, 113.

The term "costs," as used in Act July 20, 1892, c. 209, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706], allowing any citizen to prosecute any suit or action in the federal courts without prepaying fees or costs, means taxable costs to be recovered by the adverse party. Columb v. Webster Mfg. Co. (U. S.) 76 Fed. 198, 200.

Taxes.

The tax imposed by Acts 1889, c. 130, entitled "An act to provide revenue for the state," on the unsuccessful party in civil suits, and on each indictment or presentment, is not costs, within the meaning of the law permitting imprisonment for costs, though by the statute such taxes are required to be taxed in the bill of costs, and are thereby declared part of the costs in the case. By such declaration the Legislature has not changed its nature. It is still a tax, and as such may be put in the bill of costs and collected with the costs, so far as judgment and execution may be efficacious for that purpose; but, so long as it remains in the revenue bill, as a specific tax, it cannot, by a mere declaration in such bill that it is costs, become costs in fact, so as to justify imprisonment for its payment. Costs and fees, though unknown to the common law, have in modern times a fixed and well-defined signification. Costs are the expenses incident to the conduct of a suit, either in the prosecution or defense, and such disbursements as are allowed by law as fees to witnesses and officers of court.