the costs of the plaintiff, when he prevailed, at a reasonable sum exclusive of and unblended with the damages which he recovered; and that custom prevailed till the introduction of the modern justices of assize and nisi prius; at which time it became necessary that the costs should be taxed by the court above, and not by the judges on their circuits." Gilb hist. c. p. 266. When the jury therefore gives a verdic even in the case of debt or ejectment, they say we find for the plaintiff six cents damages, and six cents costs, in order that the court may consistently add the increase of costs to the damages. In cases where the verdict is for damages, and not an ejectment, or a debt on bond with a penalty, or in covenant with a penalty, &c. they say only we find so much demages, and six cents costs.

But is there any thing to hinder the jury still to include costs in the damages and under that idea to say we find so much damages without costs. I should think there is not; it is the usage and practice. Under the statutes which provide that damages being found under a certain sum, there shall be no costs, or no more costs than damages, the jury who are the arbiter of damages, and with whom it must be to bring the damages under the sum, may say we find with or without costs. This is no more than to say, we have lessened the damages with a view to that. For costs are in a legal sense included in the word damages, 2 East. 296; and if said to be added by the court, it is the same thing as if added by the jury themselves. Damages are exemplary as well as compensatory; and it is not therefore the exact compensation that is alone to be the measure. See the error in the reasoning, 2 Cain, 213. The case in Salk. 207. was the result of good sense, and according to the reason on which the statutes passed. The jury giving costs, even where the damages found would not otherwise justify the court to encrease, took the case out of the statutes and formed an exception.

The impracticability of making but an estimate of the costs in the action, is a reason against including; or being supposed to include; but it is an embarassing circumstance to be obliged to find damages to a certain extent, in order to carry costs, in a case where a jury may think that the plain

tiff had good cause of action, but that the excuse or extenuation of damages, which, from evidence which the plaintiff could not anticipate, might reduce in such a way that small damages, on the defendant paying costs, might suffice. Reason and convenience appear to me in favour of this principle, as extending to all cases in which damages are to be recovered and costs given. Such finding by the jury ought to be considered as taking the case out of the general rule.

It is a different matter, and more difficult, to say what the jury may do, where an action is commenced in an inferior court, and removed by the plaintiff; and where it is provided that no more costs shall be recovered than damages. I should think in such a case a jury could not find a less sum, and say, with costs, "because it is the policy of the law to avoid the delay which the removal of a cause gives, and also to save the time of the superior court for the determination of the more important actions. But under our acts of assembly in the case of referees, the trial by jury being taken away, in the first instance, there is less reason on an appeal, to limit the power of the jury in this particular, so as to say, with or without See 1 Bin. 61. 4 Bin. 5. In the case of penal actions, or actions on penal statutes, where a certain sum, in the nature of a mulct, is to be recovered, the jury cannot give less; costs must follow. Under the statute 22d, 23d, Cha. II. reported by the judges of the supreme court to have been introduced here, where the judge must certify in order to entitle to costs, it is inferable from the policy of the statute, that the jury cannot say, with or without costs, so as to exclude the necessity of the certificate.

costs.

III Black. Com. 406.-WRIT OF ERROR.

By an act of Assembly of 6 March, 1812. Sec. 11. it is provided that "when more than one exception is taken, or point made in any court of common pleas; or other court of inferior jurisdiction, and the same has been duly removed

to the supreme court for their decision, the judges of the supreme court, are enjoined and required to give their opi nion on every point, and exception taken, and signed in the inferior court." It is no small reproach upon the courts of error, that it should be found necessary to make such a provision. It had its origin in the indolence, or weakness, or timidity of judges, and unwillingness to take more upon them in deciding points of law than became unavoidable in the undertaking to affirm, or reverse a judgment. But the defendant in a writ of error was still left at a loss to know whether the other errors which had been assigned were erroneous; so that it might behoove him to pray amendments; or, if a plaintiff, to discontinue, and bring a new action. In this country, it was following the English judges, and their errors, that led to this. It was their mode of proceeding; I mean of the English judges, that if one error assigned, was fatal to the action or proceedings, to look no farther into the record. By this means they consulted their own ease, and perhaps the interest of attornies, and special pleading, but, by no means of the parties in the suit. I am pleased therefore, with this amendment of the legislature. But there remains yet another step to be taken, and which, I think, was originally in the bill, and if so, would seem to have been struck out; for it is not in the law. It is what by way of supplement, may be yet added. I will endeavour so to explain myself that I may be understood by the legislative body with a view to such a supplement.

"A writ of error lies where a party is aggrieved by any error, in the foundation, proceeding, judgment, or execution of a suit. It is in the nature of a commission to the judges of the same or a superior court, by which they are authorised to examine the record upon which a judgment was given; and on such examination, to affirm or reverse the same according to law.

"Errors in law, are common or special. The common errors are, that the declaration is insufficient in law, to maintain the action. Special errors are, the want of an original writ, bill, or warrant of attorney or other matter appearing on the face of the record, which shews their judgment to have been erroneous,

"Errors in fact, consist of matters not appearing on the face of the record, which if true prove the judgment to have been erroneous; as that the defendant in the original action being under age appeared by attorney. That a femme plaintiff or defendant was under coverture, at the time of commencing the action, or that a sole plaintiff or defendant died before a verdict or interlocutory judgment." 2 Tidd's practice, c. 43.

In the foundation of the action, the first error that is assignable, is the want of jurisdiction; and it is a maxim of law that consent cannot give jurisdiction. Now in the case of a justice of the peace in this state, it is a great hardship, that if on a writ of error, it shall appear on the face of the proceed ing that he has exceeded his jurisdiction by a cent, even though the defendant has appealed, and not made a plea to his jurisdiction, or made the sum demanded a ground of exception before the justice, but waved all this, and taken the chance of a trial, he shall nevertheless be permitted to take advantage of this on a certiorari, which is in the nature of a writ of error. For though it is true that consent cannot give jurisdiction, where it respects the nature of the action, yet it is not necessary that this be applied where it respects only the quantum of the demand.

In like manner where errors alleged is in the process from a court; or where different causes of action are joined in one writ; or where proper persons are not made parties; or the declaration varies from the writ; or has counts that cannot be joined; or does not go to maintain, or give ground of action; or the evidence does not agree with the declaration; or the verdict with the evidence; or the judgment with the verdict; or the execution with the judgment; in all these cases, if exception is not taken to each of these, and the point made in the court below, why should a party be at liberty to assiga that for error because appearing on the record, which had never been moved or thought of, or brought forward in the court below, and it can be by implication only, that it can be supposed to have passed upon it, the matter having passed sub silentio, and no notice taken of it by the party in the first instance. The clause therefore which I would propose

is this, that where a certiorari is taken to a justice of the peace, or writ of error to a court of record, no exception on the certiorari to the proceedings of the justice, shall be taken; and on the writ of error to the court of record, no error shall be assigned which had not been made a ground of exception to the court below, and on which the court had not expressly decided; and at the proper degree of the proceedings when such exception ought to have been taken, or point made.

"The next species of execution is against the goods and chat"tels of the defendant; and is called a writ of fieri facias," &c. III Bl. Com. 417.

THE law gives preference to priority; prius in tempore, potior in jure is the maxim. The fieri facias put first into the hands of the officer, has the right to a levy to be first made under it; and the levy first made, attaches in favour of that creditor. But this may be lost by delay, either where the delay may be evidence of covering that property collusively with the debtor; or where the delay itself will amount to a fraud in law. It may be a fraud on those who give credit on the evidence of goods in a man's possession. This would be a fraud in fact; or it may delay a posterior execution; and this would amount to a fraud in law. A man must use the preference the law gives him, so as not to delay or defeat the right of another. This both at common law, and under the statute of Elizabeth.

But will a fraud in fact be inferred; or a fraud in law arise from the suffering the property levied on to remain in the possession of the debtor; or rather the officer not taking it immediately into his actual, as it already is in his legal possession? That is by such removal and change of situation as will be exclusive of all evidence of a possession by the debtor. Must the officer remain with the property, and hold