Strein v. Zeigler , 1 Watts & Serg. 259 ( 1841 )

Per Ctjriam.

As the statute of Gloucester gave costs only in civil cases, and as an indictment, though prosecuted by an individual, is the suit of the crown, a prosecutor neither pays nor receives costs by that statute, or the common law. In England, the 25 G. 2. authorizes the courts to order him his costs out of the county treasury, on a conviction of felony; and the 18 G. 3. gives the same authority in cases of acquittal; but neither of these statutes has been in force here. We have indeed had very little legislation on the subject. The statutes of 1791 and 1797 changed the odious common law principle which left the accused to pay the costs, whether convicted or acquitted; but neither of them provided for the expenses of a private prosecutor. The Act of 1804 alone empowered the grand or petit jury to impose on him the costs of an unfounded prosecution; but in this instance the power was not exercised. If, then, an indictment of forcible entry is not a civil suit, this action does not lie. The motive for resorting to it is, with few exceptions, to redress a civil injury, and as the fine was mostly nominal, it was at one time not unusual for the attorney general or his deputies to appear for the accused; but this was by sufferance, and in cases where the force was unattended with outrage. Whether the practice continues still, we know not; perhaps it was not at any time strictly proper. But the indictment was, in all beside, attended with the incidents of a criminal prosecution. The attorney general, and the other officers, had the same fees, a fine was set upon conviction, the defendant was sentenced to pay the costs of prosecution, and stood committed till the sentence was complied with. The Act of 1700 directs the offence to be punished as a breach of the peace, and satisfaction to be made to the party injured; and the Act of 1810 undertook to settle, what had not been doubted, that jurisdiction lay with the Quarter Sessions. Besides this, we have all the British statutes on the subject, except the 5 JR. Stat. 1., which our Act of 1810 was intended to supply ; and there is therefore no colour to subject a prosecutor to payment of costs to the commonwealth’s witnesses.

Judgment affirmed.