The opinion of the Court was afterwards drawn up by
Shepley J.Costs are claimed in this case for the plaintiff in eiTor, the judgment having been reversed for error in law. It is not denied that the practice has been to refuse costs both in Massachusetts and in this State, in such cases. The plaintiff relies for his costs upon the unqualified language of the statute, in the following words, “ and in all actions, as well those of qui tam as others, the party prevailing shall be entitled to bis legal costs.” Rev. Stat. ch. 59, sec. 17. This language was copied from the statute of Massachusetts of the thirtieth of October, 1784, $ 9. While this State was a part of Massachusetts, the statute had received a judicial construction, which was uniform and well known, having been the same for more than thirty years. The reason for excepting the case of a plaintiff in error, prevailing for error in law, from the operation of the statute, does not seem to have been given. It may have been, that the courts regarded the statute as imposing costs upon the party in fault. And when judgments are reversed for error in law, the fault being in the Court, not in the party, the reason ceasing, the costs were not allowed. There is some analogy between such a construction, and the one given to the statute in Ryder v. Robinson, 2 Greenl. 127, where the demandants in areal action died, and the action abated, the Court denied costs to the tenant, “ the writ being abated by the act of God.” Yet it is said, in Brown v. Chase, 4 Mass. R. 436, that “the Chief Justice ob*197served, that he saw no sufficient reason why costs should not be given. But the practice having been uniform not to grant them, where the judgment is reversed for error in law, it cannot be shaken without great consideration.” And the costs were refused. The defendant in error, in Massachusetts as well as in this State, is allowed his costs, and it may be for the reason before stated, that the plaintiff would be the party in fault, because the result has proved the decision of the tribunal complained of to have been correct. If this were a question of construction established only by long practice and judicial decisions, no reasons being given for such decisions, and it having been stated in one of them, that no sufficient reason could be given, this Court might not feel itself bound by such construction, and might decide, that the plaintiff should be allowed his costs. But the Court must regard such construction as established by the legislative department; and it cannot now be departed from without assuming legislative power, consistently with principles already declared by this Court, in several cases, to be binding upon it.
The principles alluded to are, that when a statute of Massachusetts has received a well known, judicial construction, and has been re-enacted in this State, “ the legislature of this State have sanctioned that construction by the adoption of language in conformity with it.” 1 Greenl. 186, Bailey v. Rogers et al.; 5 Greenl. 19, Gibson v. Waterhouse; 5 Greenl. 74, Hathorne v. Cate.
If any alteration of the law respecting costs in cases like the present, is desirable, such alteration should be made by the legislative power.
No costs allowed.