Commonweath v. Commissioners of Huntingdon County

The opinion of the court was delivered by Tilghman, C. J.

This case comes before us as a rule on the commissioners of Huntingdon county, to show cause why a mandamus should not issue, commanding them to draw an order on the treasurer, for payment of costs in the case of the Commonwealth against John Parlies, in the court of Quarter Sessions of Huntingdon county. It appears that there were two indictments against Parlies: one in which a bill was found at January sessions, 1822, and quashed at August sessions, 1822, at the instance of the attorney general; the other, sent to the grand jury at August sessions, 1822, and returned “ Ignoramus, the costs to be paid by the county.” The commissioners are willing, and have never refused to pay the costs on the Ignoramus bill, but contend that the county is not liable to costs on the bill which was quashed. The two bills are distinct prosecutions, and the grand jury could only say who should pay the costs on that which was before them; the question, therefore, of costs, on the bill which was quashed, must be considered without reference to the decision of the grand jury in that which was returned “ Ignoramus.” At common law, the commonwealth, or the county, are not liable to costs. It requires an act of assembly, therefore, to make them liable. But I think no such act has been shown on this occasion.

By the act of the 8th of December, 1804, (4 Sm. L. 204. Purd. Dig. 357,) in all prosecutions, cases of felony excepted, if a bill of indictment be returned “ Ignoramus,” tbe grand jury shall decide whether the county or the prosecutor shall pay the costs of prosecution ; and in all cases of acquittal by the petit jury, on indictments for the offences aforesaid, the jury shall determine whether the county, or the prosecutor, or the defendant shall pay the costs. But the present case does not fall within either of these provisions, because here was neither an acquittal by the petit jury, nor a bill returned ignoramus. The bill was found, and then the indictment quashed. It. was contended that the case was embraced by the fee bill of the 28th of March, 1814. sec. 13. (Purd. Dig. 281.) by which it was enacted, “ That in case of a conviction, all costs shall be paid by the party convicted, but where such party shall have been discharged according to law, without payment of costs, the costs shall be paid by the county.” But it is clear, that the latter part of this clause, by which the costs are thrown on the county, is confined to the case mentioned in the beginning of the same clause, viz. the case of a conviction. Assuming it as a principle then, that the county is not subject to costs unless made so by an act of the legislature, and no act to that effect having been shown in the present instance, I am of opinion that the rule to show cause &c. should be discharged.

Rule discharged.