
    James, Auditor, et al. v. Walker.
    (Decided April 26, 1912.)
    Appeal from Franklin Circuit Court.
    1. Costs — Judgment for — Cannot be Rendered Against Commonwealth in Action Unsuccessfully Prosecuted Against It. — iAs section 885 Ky. Stats.' provides that “If tbe Commonwealth shall be unsuccessful in any case prosecuted in her own right, no judgment; for costs shall be rendered against her,” it necessarily follows that, a judgment for costs cannot be rendered against her in favor of a plaintiff in an action successfully prosecuted by him.
    2. Same. — In such case the plaintiff must be taxed with costs incurred by him, but not with the costs incurred by the Commonwealth.
    JAMES BREATHITT, Ex-Attorney General and CHARLES H. MORRIS, Assistant Attorney General for appellants.
    ERNEST WOODWARD, M. L. HEAVRIN and J. W. BOSTON for appellee.
   Opinion op the Court by

Judge Settle —

Overruling Motion.

Appellee complains that although successful in his ■contentions in this case, both in the Court below and this Court, the Clerk of this Court in his taxation of the ■costs, improperly failed to tax in his. favor and against the Commonwealth the costs incurred hy him in this court. In other words he insists that he is entitled to recover of the Commonwealth his costs.

Section 885, Kentucky Statutes, provides:

“If the Commonwealth ishall be unsuccessful in any case prosecuted in her own right, no judgment for costs shall be rendered against her.”

.• If the Commonwealth is not liable for costs to a party unsuccessfully sued by her, a fortiori is it true that she cannot be taxed with the plaintiff’is cost in a suit successfully prosecuted against her. In Commonwealth v. Todd, &c., and Commissioners of Sinking Fund v. Todd, &c., 9th Bush, 708, it was held that though a party sued by the Commonwealth and successful in his defense, could not recover cost against the Commonwealth, he could not be burdened with the general costs of the litigation. That rule seems to have been applied by the clerk in taxing the costs in this case. Appellee is. only charged with the costs incurred by him; therefore his motion is overruled.  