States v. Webster , 8 Me. 105 ( 1831 )

Mellen C. J.

delivered the opinion of the Court, at the ensuing June term in Washington.

This is an action of trespass quare clausum fregit and a verdict having been returned in favor of the defendants they move for judgment for their costs. The motion is a novel one; and if we should grant it, we could not, by any of our process, carry it into execution, and give to the defendants the fruits of the judgment. They could be obtained only on petition to the legislatures of the respective States; and that can be done as well without as with such a judgment. The counsel has cited some expressions of the Supreme Court of the United States, that perhaps a judgment for costs might be entered against the United States ; but it does not appear ever to have been done. It is said that though a State is not sueable, yet if such State sues an individual in a civil action, they then both stand on the same level, and judgment for costs ought to be entered against such State. Justice seems to require that the State in such a case should pay costs; but we are not aware that we can rightfully enter the judgment moved for. In the case of inquests of office, which are usually prosecuted for the benefit of individuals, there is a special statute provision for the payment of costs from the State Treasury; and this seems to be a legislative declaration that without such a provision, costs could not be demanded. It may be a very proper subject for the consideration of the legislature ; and it is for them to adopt such measures as they may deem consistent with justice and sound policy.

Motion denied„