dissented, and delivered the following opinion: — Upon an indictment for a misdemeanor, the jury rendered a verdict of not guilty, and directed the prosecutor, naming him, to pay the costs.
*71On behalf of the prosecutor, a rule was obtained upon the defendant, to show cause why the verdict, as far as the costs are concerned, should not be set aside. This rule was made absolute. The rule was asked for, upon the ground that there was nothing in the testimony to show that the prosecutor behaved improperly.
The question is, can the court interfere with the finding of a jury, as to costs, in cases of misdemeanor ?
The Act of the 8th of December, 1804, provides as follows :—
“ Sect. 1st. In all prosecutions, cases of felony only excepted, if the bill or bills of indictment shall be returned ignorafnus, the grand jury who returned the same, shall decide and certify upon such bill, whether the county, or the prosecutor, shall pay the costs of prosecution; and in ali cases of acquittals, by the petit jury, on indictments for the offences aforesaid, the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant or defendants, shall pay the costs of prosecution; and the jury so determining, in case they direct the prosecutor to pay the costs, shall name him or them, in their return or verdict.
“Sect. 2d. Whenever any jury shall determine, as aforesaid, that the prosecutor, or prosecutors; shall pay the costs, the court in which the said determination shall be made, shall forthwith pass sentence to that effect, and order him, her, or them, committed to the jail of the county until the costs are paid, unless he, she, or they give security ‡0 pay the same within ten days.”
The Act of the 9th of February, 1820, sect. 1st, enacts:— “That in all prosecutions, where the petit jury trying the same, shall acquit the defendant, or defendants, and shall determine by their verdict that the prosecutor shall pay the costs, the defendant’s bill .for his subpoenas, serving the same, and attendance of his material and necessary witnesses, shall be included in the costs, and paid accordingly: Provided the said bill shall be sworn to, taxed by the clerk, and allowed by the court trying the indictment.”
In view of the provisions of the enactments quoted, it will hardly be denied that the legislature 'has given to the jury the exclusive power over the costs, in cases of misdemeanor, limited only as to the manner of the finding. If the verdict is guilty, of course it carries costs. If not guilty, they may impose them upon either the defendants, the prosecutors, or the county.
That the legislature might lawfully designate the tribunal in whose hands this power should be placed, is too clear for argument. Costs are the creatures of statutory regulations, depending entirely upon the will of the law-making power for their *72legal existence, which creative authority is subject to no supervision whatever.
It is said that the power in the hands of a jury, unless controlled, is liable to be abused. Grant it. What power is not ? And is the abuse or wrongful application, a greater evil than the usurpation of authority ?
If the statute provided that the jury should only impose the costs upon a prosecutor, when there was misconduct upon his part, there would be some plausibility in asserting the right of the court in a clear case, to say, that the jury had exceeded its authority; but where the discretion is unlimited by terms, or conditions of any kind, who shall retard its exercise ?
Unlike the case of setting aside an entire verdict, and granting a new trial, here the action of the court is final, and the effect is, that the officers, witnesses, and party, must lose their costs, which they certainly are justly entitled to receive, from some source. To remedy a disputed wrong, an admitted one is committed, which surely is not an advance in the administration of justice.
For one, I think that the legislature acted wisely, in permitting the jury to say by whom the costs should be paid in criminal cases, of the grade of misdemeanors, and so far as my experience goes, I am free to say, that it has almost universally been applied, so as to promote the ends of justice; but were it otherwise, the remedy is with the legislature, and not with the courts. We are not called upon in the case before us, to decide whether the jury can legally impose costs upon a public prosecutor, such as the district attorney, or a constable, upon whose return an indictment is found, or even upon a person who is a stranger to the cause, for it is a conceded fact in this case, that Patterson was the prosecutor in truth, and not merely named as such by the jury. It is alleged that he was guilty of no misconduct. Of this, however, we have not the means of judging; and whether the court or the jury came to the correct conclusion, is to us a sealed book. I have no doubt, but that the learned judge of the sessions, firmly believed that injustice was done to the prosecutor by the finding of the jury, and I am equally clear, that the jury, acting under the solemnities of their oaths, rendered what they believed to be a true verdict. I am for letting it stand, because I think no one can legally disturb it. We shall best preserve our own rights, by being careful not to encroach upon those of others.
I am authorized to add, that the chief justice concurs in this dissenting opinion.