The plaintiff in error contends, 1. That costs were claimable from the owners of the property; 2, That this was, at least, a question for the exclusive cognisance of the district court; 3. That the payment of the costs was voluntarily made, pending a course of judicial proceeding.
1. As the defendants’ vessel sailed from England, before notice of the president’s proclamation of the 2d November, 1810, was or could have been known there, and as she arrived in ther United States, soon after the 2d of February, 1811, she was not, in justice and equity, liable to condemnation for a breach of the non-intercourse law. The seizure was, consequently, withdrawn, and the vessel and cargo liberated, upon notice being received of the act of congress of the 2d March, 1811, which exempted such vessels from the operation of the non-intercourse law. To exact costs from the defendants, under such circumstances, would be as oppressive as it would be illegal. The vessel, under the equity of the first law, and by the express terms of the supplementary act, was not liable to seizure or forfeiture, and there was, therefore, no ground to exact costs for the seizure and libel. Costs are the consequence ,of some default of the party against whom they are awarded, and áre never, at least in the common law courts, and in the instance court, assessed against an innocent party, who is not chargeable with any default.
2. If the costs have been illegally exacted in this case, they are recoverable back by a suit at common law. There is no statute, nor rule, which confines the party who seeks redress for such extortion, to the court in which the suit had been originally instituted. It belongs to a court in which a suit is brought to award costs when they are to be awarded. This is a matter exclusively incident tb such court. No other court can do it; but if the suit be discontinued, as this was, for want of cause, and without being brought before the court for decision, the exaction of costs is an act in pais, for which the officer may, indeed, be pu*377aished by that court for his mal-practice, but the money may be recovered back in any other court having competent jurisdiction~ The demand becomes a new, distinct cause of action, which is no ¡more cognisable in the district court than any other like cause of action. Whether the seizure of the property was well made or not $ was a question belonging exclusively to the district court; but after the suit was discontinued by the parties seizing and prosecuting, on the ground that the seizure was not warranted, the jurisdiction of the court in the case was at an end, and the exaction of costs was a subsequent act of the officer, wholly distinct from the prosecution.
3= The payment of the costs could not be considered a votantary act. They were exacted by the officer, colore officii, asa condition of the redelivery of the property. It would lead to the grossest abuse, to hold a payment made under such circumstances, a voluntary payment, precluding the party from contesting it afforwards.
Judgment affirmed.