(dissents).
Costs are purely statutory. At common law there is no right to recover costs. In point of fact it was the custom with all juries to include the probable amount of costs in the verdict for damages, but there was no right to recover costs eo nomine at common law. The first statute that gave costs in real actions was the statute of Gloucester, 6 Edward I. c. 1. This was followed by numerous acts in England and afterwards in this state, permitting the collection of costs, as well as, in certain cases, fixing the amount to be paid. Under our modern practice, that portion of the costs which is paid to the officers of *379the court partakes of the nature of a contract. The plaintiff, in bringing the suit, is liable, in the first instance, for the amount of fees which the officers are entitled, to receive for services rendered to him in the execution of process, docket entries, etc., and such court officers' can recover from the plaintiff, in an action of assumpsit, upon such implied contract the amount of fees to which they would be entitled. Upon recovering judgment against the defendant the plaintiff can collect from the defendant by his execution the fees which he is supposed to have paid to the officers of the court. Such has been the practice from the foundation of this state as a province.
It will be seen therefore that costs as such are clearly within the provision of the act of July 12, 1842, P. L. 339, and there can be no imprisonment for debt by reason of the nonpayment of costs as such.
As all costs, however, partake of the nature of the judgment entered in any action brought, and become part thereof, in a judgment for a tort, or in any form of action within the exception of the act of 1842, a capias ad satisfaciendum will issue for costs as well as the judgment. In a common law action, no capias can issue as a writ of execution for costs except where there has been a judgment entered upon a tort, or upon some action expressly excepted from the provisions of that act.
In the case that we have now under consideration, there could be no imprisonment for debt because of the defendant’s failure to pay the costs, merely because they were costs, which were adjudged by the decree of the court against him. Therefore, to justify the conclusion arrived at by the majority of this court, its reasoning must rest upon some other basis than that he was merely adjudged to pay costs.
It was contended by the appellee that because the decree of the court below directed the defendant to do something which, if he had neglected to do, he would have been punished for as contempt of court, and incorporated in that decree was the direction to the defendant to pay the costs, and the neglect to comply with the direction of the court in regard to the act to be performed by the defendant was punishable as contempt of court, that the provisions of the decree could not be separated, and, if one part of the direction of the court was punishable as contempt, the neglect to conform with, or perform the duty *380enjoined by, another portion of the decree was equally punishable as contempt, — That is to say, decrees against a defendant in a suit in equity are not divisible, but where a defendant is directed to do some particular thing and to pay the costs, he will be punished for contempt of court if he neglect to do either. This would be a novelty in equity proceedings, and an innovation in the practice which would be startling to the judiciary and the bar of the State of Pennsylvania. To say that where a man was guilty of the commission of a private nuisance, or any other injury to another’s rights which would be restrained or corrected by the injunction of a court of equity, and he was directed by the decree to right the wrong and to pay the costs, if he complied with the direction of the court commanding him to do the particular thing directed and it was impossible for him to pay the costs, imprisonment would follow, would be such a construction of the law of equity in this state as would revolutionize the practice.
I do not understand the opinion of the majority of this court to rest upon any such reasoning. But they have determined that there is an element of fraud which appears in this case, and therefore under the decisions of the Supreme Court in Church’s Appeal, 103 Pa. 263, and Wilson v. Wilson, 142 Pa. 247, attachments for contempt for nonpayment of costs decreed against the defendant, and punishment thereunder, is a proper proceeding.
I do not so read Church’s Appeal, upon which rests the decision in the opinion in Wilson v. Wilson.
The Supreme Court say in Church’s Appeal: “ Where the decree against a party is founded upon his tort, or upon his breach of duty as a trustee, the costs imposed upon him follow his wrongful acts. In an action for a recovery of money founded upon a contract, the costs are of the same nature, and the defendant is not liable to arrest for either debt or costs. S. S. Pierce’s Appeal, decided at this term, reported, ante, page 27. But, where the party is liable to arrest to enforce payment of money or the performance of a specific thing, he is also for the costs taxed against him in the judgment or decree.”
In the case of Wilson v. Wilson, the Supreme Court say: “ It may be conceded that the order for the payment of money, without more, would not subject the party against whom such order is made to the process of attachment. But the decree of *381the court below shows upon its face that this is not such a case .... It shows that the plaintiff has been guilty of a breach of trust and of actual fraud. Such cases are exctepted out of the operation of the act of 1842, and an attachment may be issued for costs; citing Chew’s Appeal, 44 Pa. 247; Tome’s Appeal, 50 Pa. 285, and Church’s Appeal, 103 Pa. 263.”
In Pierce’s Appeal, which was a proceeding in equity for an account between parties who had been partners in trade, a decree was entered in favor of the plaintiff for a certain amount of money and costs. The court below ordered an attachment to be issued against the defendant for the payment of his costs within sixty days. The costs were not paid, and an attachment was issued against the defendant because of the noncompliance with the decree of the court in regard to the payment of the costs.
Mr. Justice Tkijnkey says: “ The act of 1842 applies alike to judgments at law and to decrees in equity, and prohibits arrest in every case upon contract which is not included in the exceptions. Where it applies, an attachment cannot be lawfully issued, for the party shall not be arrested and put to his answer to the satisfaction of the judge or chancellor that he is unable to pay the judgment or decree under pain of imprisonment. Its object being to prevent oppression of debtors, in futherance of that end it should be liberally construed. A creditor is no more entitled to process for arrest of the debtor for costs than for a debt which was the foundation of the suit. As respects remedy, the costs follow the judgment or decree for the recovery of money, and when a statute exempts the defendant’s property from levy and sale or his person from arrest to enforce satisfaction of the debt, it also applies to the costs. In an action for a tort, a judgment against the plaintiff for costs is not like damages against the defendant. A judgment for costs is to be considered in the same light as a judgment for debt on contract so far as the exemption law affects the rights of parties. And it makes no difference that the costs accrued in an action of tort: Lane v. Baker, 2 Grant, 424.”
A careful examination of these authorities indicates that the line pointed out by them is this — that where a common law remedy is sought upon a condition of facts, a judgment upon which for damages together with costs would be enforced by *382capias, equitable relief prayed for upon tbe same state of facts in a bill in equity and a decree in accordance therewith directing such equitable relief together with the payment of costs, such decree in its entirety will be enforced by attachment. But where the state of facts set out in the bill in equity is not such as could be made the foundation of a common law action, even though the decree entered upon such facts is the direction for the defendant to do a particular thing, together with the' payment of costs, the payment of costs will not be enforced by attachment, although the specific performance of the thing directed will be.
And it is this distinction which can clearly be read in all decisions of the Supreme Court upon this question. That is to say that where the plaintiff has his choice of remedies, the one by an action for damages, the judgment upon which would be enforced by capias, the other for equitable relief, and he seeks the court of equity for the equitable relief desired, the court, upon the same state of facts which would have warranted the issuance of a capias at common law, will issue an attachment for contempt if the costs decreed are not paid. To hold otherwise would be injecting into our equity practice great hardships. A party directed to convey real estate by a perfect deed when an imperfect deed has been given, or to remove an encroachment upon a highway by his building or his fence or his steps, or to transfer certain property, or in any other act where specific performance is commanded or directed and it is complied with, and the defendant is unable to pay the costs, that he should be adjudged in contempt of court would be an innovation in our equity practice and a hitherto unexpected power of a chancellor. And while in the interest of justice, the rule as to attachment to compel payment of costs has been established by the Supreme Court, and will commend itself to those interested in the administration of the law, yet it imposes upon the defendant a punishment greater than that by arrest in a common law action upon a capias ad satisfaciendum. A defendant whose person is taken by a capias because of the nonpayment of a judgment, is entitled to relief and discharge upon application for the benefit of the insolvent law. No such privilege is extended to him when he is arrested because of nonpayment of the costs decreed against him in a proceeding in equity, but he is held, by reason of his *383contempt of court, until the payment of the money by him, or at the pleasure of the judge making the decree. Because of this increased hardship, the rule in equity should not be carried beyond the rule in a common law action.
In this case the defendant was directed to deliver to the plaintiff a release of his pretended title to certain lands described in the bill in equity, and to surrender a deed executed by Joseph Ross to the said defendant, and that he pay the costs of suit, together with the fees of the examiner and master. This decree was entered on the 1st of October, 1891. On the 17th of November, 1894, a rule was entered on the defendant to show cause why an attachment should not issue for contempt, the petition alleging that the deed had not been delivered and the release had not been executed, as directed by the court in its decree, and the costs of the proceedings had not been paid. To this rule to show cause the defendant answered by tendering a release such as was directed by the court, he at the same time averring that the deed had been lost and that he was too poor to pay the costs; that his poverty was not his fault but was unavoidable. On the 1st of December, 1894, the deed was delivered to the plaintiff in open court.
The decree of the court, therefore, was fully complied with, except the payment of the costs by the defendant, — they were paid however by the plaintiff. Nothing further was done until nine months afterward, on the 21st day of September, 1895, when an order was made by the court directing an attachment to issue against McDonough for contempt because of the nonpayment of the costs of suit, and an order was issued adjudging him to be in contempt of court and directing his imprisonment.
This order upon the attachment proceedings is the question which was appealed from and the sole question for consideration before this court. Under the decisions as I interpret them, the sole question for the consideration of this court, therefore, upon this appeal, is — Are the facts as set forth in the bill in equity such as would justify a judgment which would be enforced by a capias, if a judgment had been obtained upon these facts in a common law action ?
If upon this state of facts a judgment could have been obtained in a common law action, enforceable by capias, the attachment proceedings are right.
*384If no such judgment could have been obtained, then the attachment proceedings are wrong.
This is a case, it seems to me, where there could have been no remedy for damages in a common law action. It was an action where relief could be obtained only by an appeal to a court of equity; and, as no judgment could have been entered in a common law action upon this state of facts, which would have been within the exception of the act of 1842, therefore, no attachment will lie to enforce the nonpayment of costs because of this decree in equity.
I am constrained therefore, for the reasons which I have given, to dissent from the views of the majority of the court, and have put in this form my reasons therefor.