#### The State v. William Whithed.

1 [-From Edgecombe. J

Wliere ike Defendant in an indictment is acquitted, or wliere a nolle prosequi is entered, lie is bound to pay bis own costs, and none other.

The indictment in this case was founded on the presentment of a Grand Jury. The Defendant was tried and acquitted, and a question was submitted to the Court whether he was liable for costs, and if so, what costs ; and the same question was submitted in the case of

The State ■v. J-James Dancy, J

Wliere a nolle prosequi was entered.

Henderson, Judge,

delivered £jae opinion of the Court:

The Defendant is bound to pay his own costs $ for he incurs them by calling on those whose services he thinks ho needs, and he must pay them for labor done at Ms request. And there is no person by whom he can be remunerated, the statute fixing the costs on the party cast not applying to the case, and it being a maxim in our law that no person recovers costs of the sovereignty. But we cannot perceive on what ground the Defendant should be subject to any other costs. There is no law, either statute or common, which makes him liable. It is true, %ve suppose that the Legislature, when they passed the act of 1800, supposed that the Defendant, although acquitted, was liable for all costs, except in cases where the prosecutor was ordered to pay them, and by that act exempted him from the payment of the State’s witnesses: but this is supposition upon supposition. It is admitted that judicial construction or legislative understanding ought not to be departed from lightly; but in this case the Court are at a loss to point out the act which was thus interpreted. *224They conjecture that it was the act of 1777, directing the ^om't in certain cases to make the prosecutor pay costs. From that it was probably thought that in all other cases £jic j)epenQan^ was bound to pay them. But this is mere conjecture, and is certainly too slight a ground to adjudicate on in a country governed by known laws. So far from there being any law to warrant it, every law on the subject with which we are acquainted is in opposition to it. We are, therefore, of opinion that the Defendant is bound to pay none other than his own costs.