shall be nonsuit in the same, or if upon trial a verdict shall pass for the defendant, the court shall award to the defendant his costs, unless such informer or plaintiff be an officer of the United States specially authorized to commence such prosecution, and the court before whom the action or information shall be tried, shall at the trial in open court, certify upon record, that there was reasonable cause for commencing the same,1813, ch. 14. in which case no costs shall be adjudged to the defendant.[1]
Fees herein how to be recovered.Sec. 6. And be it further enacted, That the fees and compensations to the several officers and persons herein before mentioned, other than those which are above directed to be paid out of the treasury of the United States, shall be recovered in like manner as the fees of the officers of the states respectively for like services are recovered.
Penalty on demanding unlawful fees.Sec. 7. And be it further enacted, That if any officer herein before mentioned, or his deputy, shall by reason or colour of his office wilfully and corruptly demand and receive any greater fees than those allowed by this act, he shall on conviction thereof in any court of the United States, forfeit and pay a fine not exceeding five hundred dollars, or be imprisoned not exceeding six months, at the discretion of the court before whom the conviction shall be.
Certain acts repealed.Sec. 8. And be it further enacted, That the act passed at the last session of Congress, entitled “An act to continue in force for a limited time, an act passed at the first session of Congress, entitled An act to regulate processes in the courts of the United States;”1791, ch. 8. and also another act passed at the last session of Congress, entitled “An act providing compensations for the officers of the judicial courts of the United States, and for jurors and witnesses and for other purposes,” be and the same are hereby repealed.
Clerk of supreme court to transmit to clerks of circuit courts the form of a writ of error.Sec. 9. And be it further enacted, That it shall be the duty of the clerk of the supreme court of the United States, forthwith to transmit to the clerks of the several circuit courts the form of a writ of error, to be approved by any two of the judges of the supreme court, and it shall be lawful for the clerks of the said circuit courts to issue writs of error agreeably to such forms, as nearly as the case may admit, under the seal of the said circuit courts, returnable to the supreme court, in the same manner as the clerk of the supreme court may issue such writs, in pursuance of the act, intitled 1789, ch. 20.“An act to establish the judicial courts of the United States.”
When clerks may take recognizances de bene esse;Sec. 10. And be it further enacted, That it shall and may be lawful for the clerks of the district and circuit courts, in the absence or in case of the disability of the judges, to take recognizances of special bail, de bene esse, in any action depending in either of the said courts, and also the affidavitsand affidavits of surveyors, &c. of all surveyors relative to their reports, and to administer oaths to all persons identifying papers found on board of vessels or elsewhere, to be used on trials in admiralty causes.
1812, ch. 25.Where judges act as counsel for a party.
their duty in such case.Sec. 11. And be it further enacted, That in all suits and actions in
- ↑ Costs are not to be awarded against the United States. The United States v. Hoe et al., 3 Cranch, 73; 1 Cond. Rep. 458. The Antelope, 12 Wheat. 546; 6 Cond. Rep. 629.
Where there appeared some ground for the prosecution, costs were refused. The United States v. La Vengeance, 3 Dall. 297; 1 Cond. Rep. 132.
It is undoubtedly a general rule that no court can give a direct judgment against the United States in a suit to which they are a party, either in behalf of any suitor, or any officer of the government. But it by no means follows that they are not liable for their own costs. No direct suit can be maintained against the United States. But when an action is brought by the United States, to recover money in the hands of a party, who has legal claim against them for costs, it would be a very rigid principle to deny to him the right of setting up such claim in a court of justice, and turn him round to an application to Congress. If the right of the party is fixed by the existing law, there can be no necessity for an application to Congress, except for the purpose of remedy. And no such necessity can exist, where the right can be properly set up by way of defence to a suit by the United States. The United States v. Ringgold et al., 8 Peters, 150.
If a witness recognized for the defendant, is marked on the indictment and sent to the grand Jury by the district attorney, the United States on the acquittal of the prisoner, must pay the witness his costs. The United States v. Coulter, Circuit Court of Pennsylvania, April, 1803.
