Cate v. Nutter

Gilchrist, C. J.

The question is, is a respondent, in a complaint for a military fine, entitled to costs, when the complainant is nonsuited 1

Costs shall follow the event of every action or petition, unless otherwise directed by law or by the court. Rev. Stat. ch. 385, § 1.

This is not a case for the exercise of the • discretionary power given the court by section 7. If the party is entitled to costs by law, the court cannot deprive him of them.

He is legally entitled to costs, unless this proceeding is a criminal prosecution, and unless when the complaint is in the name of an individual, he stands in the position of a respondent, who is complained against by the State.

Upon a complaint, the justice shall issue a summons. Rev. Stat, ch. 82, § 10.

The party is not to be arrested, there being no provision for it.

He may take the poor debtor’s oath. § 6.

Neglect of military duty does not imply any moral wrong. The sentence does not affix any stigma on the character.

Parents, masters and guardians are liable for fines and penalties, incurred by persons under their care, and may be proceeded against. ' This would not be the case, if the Legislature had regarded this as a criminal proceeding. § 9.

The complaint need not be under oath, as a criminal complaint must be.

The form of the complaint is not given. 1

By the act of December 22d, 1820, the proceeding is *520 called an information, and is not under oath, (ed. of 1824, p. 81,) nor does it conclude contra formam, &c.

But by the subsequent act of 1829, (Laws, 1830, p. 414,) it is under oath and contra formam.

Under the Revised Statutes, there is no necessity for the complaint to take the form of a criminal process.

“ All indictments, presentments and informations shall conclude against the peace and dignity of the State.” Con. of N. H. art. 88.

If the Legislature do not provide that a process shall so conclude, they can hardly mean that it is a criminal prosecution.

In the case of Anderson v. Walker, 3 N. H. Rep. 311 , the complaint was in the name of the clerk, under the act of 1820. The court say, “ Nothing is said with respect to the costs of the respondent. We should, therefore, conclude that the intention of the Legislature was that the respondent should have his costs, as in other cases. And it is a circumstance decidedly in favor of such conclusion, that the statute of 1819, ch. 1, § 49, provided that no clerk should be liable to pay any defendant cost, in any case in which the commanding officer of the company indorsed his approval on the information of such clerk; and this provision is wholly omitted in the statute of 1820, which is'a revision of all the statutes on the subject.”

There were, then, under the act of 1829, certain cases in which the respondent recovered costs. As the act of 1820 was silent on the subject, the court considered the respondent to stand as well as other parties, and did not regard this as a criminal prosecution.

The same reasoning applies here, and unless we overrule that case, the same result must follow.

Judgment for the respondent for costs.