State v. Harlow , 26 Me. 74 ( 1846 )

The opinion of the Court was drawn up by

Tennev I.

— In criminal prosecutions in behalf of the State, no costs are allowed in favor of the accused, if be be discharged or acquitted. But in ail actions, the party prevailing shall be entitled to costs. R. S. c. 115, <§> 56. Under a similar provision in c. 59, $ 17, of the statutes of 1821, on the return of a verdict for the defendants in an action of trespass quare clausum fregit, in favor of the State of Maine and the Commonwealth of Massachusetts v. Webster & al. the Court were moved to allow costs, but they were not allowed. The Court say, “ 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.” “ It may be a very proper subject for the consideration of the legislature.”

By c. 115, <§. 91, R. S. it is provided, that in “ any civil suit instituted by the State, and for the use and benefit of the State, the State shall be liable for the defendant’s costs, and judgment shall be rendered for them against the State, and the treasurer of the county, in which the trial is had, shall pay the amount to the defendant, on his production of a certified copy of the judgment, and the same shall be allowed to such treasurer in bis account with the State.”

It is well settled, that a scire facias is a suit or action. McLellan v. Lunt, 14 Maine R. 254. And when brought upon a recognizance is always an original proceeding, though otherwise when upon a judgment. 6 Dane’s Abridgment, c. 190j art. 1, <§> 8 ; Howe’s Practice, 72.

A recovery of judgment upon scire facias upon a recognizance, entered into to prosecute an appeal from a judgment in a criminal process, and a satisfaction thereof, is not satisfaction of the judgment, from which the appeal was taken. Rev. Stat. 170, § 10. The scire facias is merely to obtain the forfeiture, and is often against those not implicated in the criminal offence charged. The action must be regarded as of a civil nature, equally with one in another form upon a note which may be given to the State in satisfaction of the costs, which are a part of the sentence on conviction of a crime.

The case before us is a civil suit instituted by the State, for its own use and benefit, and the defendant prevailed, and is entitled to his costs.

Exceptions sustained.