
    [Sunbury,
    Tuesday, June 11, 1811.]
    *Lewis against England.
    In Error.
    A writ of error lies to an award of arbitrators, upon which a judgment has been entered.
    After an appeal to the Common Pleas from the judgment of a justice for forty-eight dollars and thirty-six cents, the cause was referred to arbitrators, who awarded twenty dollars with costs of suit. Held, that where an act of assembly says a party shall not recover costs, neither a jury nor arbitrators can give them, and therefore that the judgment in this case was erroneous.
    Upon a writ of error to the Common Pleas of Centre county, the case was thus:
    
      England, the plaintiff below, brought assumpsit upon a book account against Lewis, before a justice of the peace. The cause was in this stage submitted to referees, who awarded in favor of the plaintiff, the sum of forty-eight dollars and thirty-six cents, with costs, upon which the magistrate rendered a judgment. Lewis appealed to the Common Pleas, where the cause was compulsorily referred to arbitrators, under the act of 29th March 1809; and their award was in favor of the plaintiff for twenty dollars, with costs of suit. From this award no appeal was entered by either party; but at the next term after it was filed, the counsel of Lewis obtained a rule to show cause why he should not be discharged on payment of the debt and interest without costs, upon the ground that the award of the arbitrators, so far as it respected costs, was void; and this rule, after being kept under advisement some time, was discharged by the court, for the following reasons assigned by his Honor the presiding judge, and which came up with the record.
    
      Walker, President. Upon looking into the act of assembly which regulates arbitrations, it does not appear to this court, that the legislature either have altered, or intended to alter the essential rights of parties as they then existed, or to repeal any section of the one hundred dollar law, or the supplement to it, or to give any uncontrollable power to the arbitrators unknown to the law before; for they have given an appeal, and the words of the act convey no greater power than was possessed by arbitrators before the act existed, and by every jury, even in a civil case, if they chose to exercise it. The only difference is that the act provides a new tribunal for the decision of the law and the fact in the cause, in the first instance before the referees, and puts the party aggrieved to an appeal. Now as all arbitrators decide without the aid of ^judges, who are supposed to be acquainted with the law, it is necessary they should decide both the law and the fact, otherwise they would not decide at all; and as all judges must decide in Pennsylvania according to the principles of justice and equity, so by the 10th section of the law, the arbitrators must also decide “justly and equitably.” It is evident therefore that the legislature contemplated no new rule of decision, but only substituted a new tribunal, with an appeal to the old one. There can be no doubt but the first and tenth sections of this law, will in common cases give a power over costs as well as the merits of the matter in variance; particularly when we consider that the power of awarding costs, is necessarily consequent on the power of determining the cause; Roe ex d. Wood v. Doe, 2 D. & E. 644; Kyd on Awards 100; but it does not appear to us, in our private judgment, to be the case where the law has positively decided how the costs shall be paid on a certain event as to the merits. In Kyd on Awards 88, it is said, “arbitrators have a power over the costs of the action, as well as the subject of the action itself, unless it is provided by the form of the submission that the costs shall abide the event, or each party shall pay his own costs, or there is some other restriction with respect to costs.” Now it would appear to us that there can be no stronger restriction on the power of arbitrators over costs, than the positive provisions of an act of assembly. If these can be disregarded by them, so in like manner might they reject the terms of the submission, when it declares that the costs shall abide the event, or that each shall pay his own costs. The reason that the referees cannot interfere in the question of costs, when that is provided for by the terms of the reference, is because this question is not submitted to them; and the same reason may be urged against the decision of the arbitrators, on the question of costs here, that this question was not submitted to them. If then this question was not submitted to the referees, they had no right to decide it, and their decision is void for want of authority; the question is still undecided, and may be decided by this court. When the legislature have passed a general law, declaring that in a certain event the plaintiff shall not recover costs, and this law has in view to correct and restrain a litigious temper, shall it be in the power of ^arbitrators, nay compulsory arbitrators, to decide against the law in such case, and defeat the just intention of the lawmaker, at their arbitrary will and pleasure? We think not. The law of the land is the will of the whole nation. Can that will be defeated at the discretion of any set of men? We think not. On this ground we have uniformly held that a jury possess no such power. Hence it is, that this court have, in all cases of like kind, decided against that part of the finding of a jury, and rejected it. In this opinion we are happy to find that we aré supported by the opinion of the Supreme Court of New York, in the case of Yanhorn v. Petrie et al., Coleman & Caines 391.
    If a jury then have no power to decide this question, why should referees possess greater authority ? There is but one case that we know of in the English books, which appears to make against this reasoning ; that is the case where damages under forty shillings in slander are found by a jury, and full costs; the courts have decided that the plaintiff shall recover both, notwithstanding the statute. But that is because the costs are considered by the court as damages, inasmuch as they might have been so considered and found by the jury. Now as there is no proper measure of damages in actions of slander, this decision appears to be correct ; but the principle can never apply to actions on contracts where there is a precise measure established by law. In the present case the plaintiff must obtain the sanction of this court to his process of execution. Are we bound to give it, where arbitrators have decided a matter not submitted to them, in the teeth of an act of assembly ? In our private judgments, we are not bound in such a case. But we are bound by the decisions of the Supreme Court, though such decisions are contrary to our own private opinions. If the case of M’Laughlin v. Scott, 1 Binney 61, be law, it appears to us to decide this motion against our judgment. We therefore request a writ of error to this opinion, and discharge the rule to show cause, and give judgment for the plaintiff for both debt and costs, as found by the arbitrators.
    
      Huston for the plaintiff in error,
    contended that the act of 29th March 1809, in devising a new forum for the trial of ’’'causes, did not intend to annul any legislative provision whatever which had reference to the question of costs. The arbitration law, he said, was therefore to be disregarded, and the point to be considered solely under the laws giving jurisdiction to justices of the peace, which it could not be denied deprived the plaintiff below, under the circumstances of this case, of his costs. Acts of 28th March 1804, sec. 4; and 8th April 1807, sec. 2. There is no ground upon which the award can be supported, except, 1, The authority of prior decisions, or 2dly, A special exemption of arbitrators from the operation of these laws. 1. As to authority, it rests upon the case of M’Laughlin v. Scott, 1 Binn. 61, which does not appear to have been deliberately considered, and therefore does not preclude further discussion. It turns upon a position which has not the countenance either of law or reason, that referees may impugn a clear undisputed provision of statute law, and give to a party, what the statute says he shall not have. It stands in opposition to what has been said by more than one elementary writer, and deemed by the profession to be perfectly well settled, that where the costs are regulated by law, or by the submission, which is but the private law of the par-' ties, the arbitrators have no power over them. Kyd on Awards 88; 2 Tidd’s Prac. 751, 752. The inconveniences of a contrary doctrine would be in the highest degree pernicious. 2. Then as to the exemption of arbitrators from this rule. Where is the statute, or the principle which gives it to them? It is not to be found. They cannot claim to stand upon a more favorable footing than a jury, particularly since they are judges as much against the will of the party as any judges can be. To give one kind of judge the power of disregarding the law, and to deny it to others, is absurd. If arbitrators have it, so have jurors, and so d fortiori have the judges on the bench ; of course the law is a dead letter. The consequence of the argument shows its absurdity.
    
      Burnside for defendant in error,
    argued 1. That the arbitrators had power to award costs. 2. That the defendant below having omitted to appeal in due time, was without remedy.
    *1. The legislature, it is obvious from all they have done in pari materia, intended to erect a tribunal not only with new forms of proceeding, but with new and extensive powers. Arbitrators are made judges of the law and the fact. They sit uncontrolled by technical rules, and free from the supervision of the bench. All fetters are taken from off them, and they are left to do what is equitable and just, according to their own consciences. In exempting them thus from all control, except that by appeal, it was intended no doubt to prevent the recurrence of those artificial distinctions between errors dehors, and errors upon the face of the award, to set them all aside together, and to raise these new judges above this kind of influence. This is a new privilege to arbitrators. But in addition to this, costs are given or denied by the law upon much the same principle as damages. Of these, arbitrators, referees and juries are peculiarly the judges. Courts of law are not. Hence therefore, the propriety of permitting them to hold costs under their control, even where it is supposed courts do not. It is upon this ground that M’Laughlin v. Scott was ruled, and has continued ever since to be the guide in such cases. The arbitrators in this case might have given these costs under the name of damages ; and if that would have been good, doing the same thing in another way cannot be bad.
    2. But there is no remedy except by appeal. If the court permit a writ of error to expose the imperfections of an awai’d by unlearned men, and to defeat it for such formal defects as are usually assigned, and may continue to be assigned for error, the reign of form will return -with new rigor, instead of being terminated according to the design of the law. The objects are justice and equity. If a party is aggrieved, form is nothing, a disregard of the law is nothing per se, he has his remedy by appeal. But if there is nothing to warrant him in swearing that he is aggrieved, the legislature meant to deny him the-chance of delay by seizing on a point of law. If there had been fraud, perhaps the court by its general powers might reach the case, without an appeal, because fraud is an exception to every rule; but there is no allegation of fraud here.
    
      In reply, it was said, that if the court could set the ^matter right, without an appeal, in ease of fraud, so no doubt if the error was on the face of the award; because the existence of a right to interfere under any circumstauees, shows that an appeal is not the only remedy; and then the only questions will be, is this award a judgment, which, particularly after the decision of the court below, it certainly is, and in the next place, is the award on its face against law.
   Tilghman O. J.

In this case two points are to be decided. 1. Whether a writ of error lies. 2. Whether the judgment is good so far as it respects the costs.

1. The reason assigned against a writ of error is, that the act of assembly gives no remedy, but by appeal to the Court of Common Pleas. The case does not stand exactly on the footing of an award filed in the office of the prothonotary with no farther proceedings on it, because the matter was taken up on motion in the Court of Common Pleas, and that court have expressly given a judgment for the amount of the debt and costs awarded by the arbitrators. But even if it rested on the filing of the award, it is considered, as a judgment on which a writ of error lies, as was lately decided by the court at Lancaster in the case of Ebersoll v. Krug, 8 Binn. 528.

2. On a consideration of the several acts of assembly on the subject of costs on appeals from the judgment of a justice, or the award of arbitrators, it appears, that in ease of an appeal by the defendant, he shall not be subject to costs where less is recovered against him on the appeal, than the amount of the judgment or award appealed from, unless he produced new evidence on the appeal. No new evidence was produced in this case; by what authority then did the arbitrators award costs to the plaintiff? I think it will hardly be contended that arbitrators are not bound by acts of assembly, especially when it is considered that they may be appointed, on the application of either party, without the consent of the other. They have power, it is true, to determine both the law and the fact in the first instance, because not being assisted by a jury, nor by judges, they must either determine both law and fact, or not decide at all. But it by no means follows that they are placed above the law. Such a construction would be monstrous; it would lessen the *security of property, and almost dissolve the bonds of society. Where it manifestly appears, on the face contrary to law, it cannot But it is said, that granting that the arbitrators have no power to control the law, yet they have power to give such damages as they think reasonable, and they might in this instance, have given the amount of the costs by way of damages. It is true they might, but such does not appear to have been their intention; they ascertained the amount of the debt, separate from the costs. Now, after fixing the amount of the debt, according to the evidence, how could they with a good conscience have increased that amount, not because it was really due, but solely with a view of throwing the costs on the defendant contrary to law. I do not believe that the arbitrators had any design to contravene the law, or knew that the defendant was not liable to costs; on the contrary, I must suppose that they would not have given costs had they been told that the law forbad them. There never would have been a doubt on the subject, had it not been decided in the construction of an act of parliament, which enacts that in case of slander, if the plaintiff recovers less damages than 40s., he shall have no more costs than damages, that the jury may give full costs though they give less damages than 40s. The law has been so construed, and therefore in that case, it must not be departed from. The reason assigned is that the jury meant to give the whole as damages. There may be some ground for this reason in cases of slander, or of torts in which there is no fixed standard of damages; but that reason would not apply to an action for the recovery of a debt, because there the debt with interest on it is a fixed standard. I am free moreover to confess that I was never thoroughly satisfied with the construction given to the statute in case of slander, and therefore though bound by it in that case, I think myself at liberty in other instances, to adopt a mode of construction more agreeable in my opinion to the intent of the legislature. What is more difficult to be got over is the case of M’Laughlin v. Scott, 1 Binney 61. From the known accuracy of the reporter, I make no doubt but that what fell from the court is faithfully set down. It appears however that the case was decided without argument, on the thought of the moment. Under such circumstances, it would be going too far, to say, that the subject is *not open to more mature consideration. We have on the record in the case before us, the opinion of the president of the Court of Common Pleas, who declares, that nothing but the authority of M’Laughlin v. Scott induced him, contrary to his own opinion, to give judgment for costs. I am so well satisfied, that the power of awarding costs is in .opposition to the law, that I must give my opinion for reversing the judgment of the Court of Common Pleas.'

Yeates J.

The question in this case is, whether under the last supplement to the arbitration law passed on the 29th March 1809, the arbitrators have a discretionary power to award costs, in matters of contract?

The action originated before a justice of the peace of Centre county, and was referred. The arbitrators awarded forty-eight dollars and thirty-six cents to the plaintiff below with costs, upon which judgment was rendered by the justice. An appeal was regularly entered by the defendant below, and the suit was referred to arbitrators under the act above mentioned, who awarded to the plaintiff twenty dollars and costs. No appeal was entered hereon, but the defendant obtained a rule of the Court of Common Pleas on the plaintiff to show cause why the defendant should not be discharged, upon payment of the debt awarded and interest thereon .without costs. The court upon argument discharged this rule with considerable reluctance in January term 1810, and directed judgment to be entered for the twenty dollars and costs, as found by the last arbitrators: Whereupon error is brought in this Court.

Tke counsel for the defendant in error have insisted, that under the law in question, the only mode of redress which the party aggrieved by an award has,is by appeal; that the arbitrators have an incontrovertible power over the law and fact of each case submitted to them, absolutely conclusive unless where an appeal has been brought; and that in fact, the very matter in the controversy has been determined in this Court in M’Laughlin v. Scott 1 Binn. 61.

As to appeal being the only remedy, and as to the controlling superintending power of this Court, in cases of real and substantial errors apparent on the record, I have delivered my sentiments at the last term of the Lancaster district in *Ebersoll v. Krug et Ux. which I will not now repeat. An additional argument presents itself under the circumstances of this case. The defendant below has had the benefit of one appeal from the decision of arbitrators; can he claim a second appeal? If he can, I know not where he is to stop, and the suit would be converted into a mathematical circle, without end, under such privilege.

I do not mean to impeach the accuracy of the report of McLaughlin v. Scott. But the argument therein must have been very slight, and the decision made on little consideration. Not a single member of the court has the smallest note of it, which I have scarcely known ever to have happened before, where a point of law has been seriously debated. It was said in a late case of Stuart v. Harkins, in the Eastern district at the late December term, to require reconsideration.

It is not stated in the report, whether the action was removed from the Common Pleas into this Court, or whether it originated here. Prom the objection made by the defendant’s counsel, it would seem that the original process issued from this Court. I have not the immediate power of recurring to the record; but it appears to me clearly, that in either mode, the determination cannot be reconciled to the words of the laws. By the act of 20th May 1767, sec. 8,1 Dali. St. Laws 480, it is provided, that if a plaintiff shall remove his cause from “ the Court of Common Pleas into the Supreme Court, the debt or damages whereof, which shall be found due by default, confession, verdict, or report of referees, shall not amount to 501. he shall not recover any costs of suit.” And by the act of 25th September 1786, giving the Supreme Court original jurisdiction in the city and county of Philadelphia, it is likewise provided by sect. 5, 2 Dali. St. Laws 472, that “if any plaintiff shall bring any suit or action in the Supreme Court, unless where the title of land or other real estate may come in question, and shall not recover thereupon more than 50i. such plaintiff shall not be allowed any costs of suit.”

It is a settled rule, that statutes giving costs, being considered as penal in their nature, are always construed strictly. 2 Stra. 1105; 3 Burr. 1287. But that case was within the letter of both laws. It does not to be a wherein *the defendant made a set-off, for there it is wholly in the defendant’s power and knowledge, whether he will insist upon and prove his set-off at the trial; consequently the reducing of the plaintiff’s demand at the option of the defendant ought not to impair the plaintiff’s right to costs. 1 Barnes 161, Scott v. Ferrall; 2 Stra. 1191; 1 Wils. 19; 2 Wils. 68. The court have no discretionary right over costs; by law the costs must follow the verdict. 1 Wils. 324.

Under the “act for defalcation,” passed in 1705, sect. 3. 1 Dali. St. Laws 66, the award of referees mutually chosen, and made according to the submission of the parties, approved of by the court and entered on the record, shall have the same effect, and be deemed, and taken to be as available in law, as a verdict given by twelve men. The power of the court in M’Laughlin v. Scott, to withhold their confirmation of the report will not be denied; nor can it be said, that the referees were not bound by the known laws of the commonwealth. Their power cannot justly be assimilated to those of arbitrators on a bond of submission, whose award cannot be impeached at law, on grounds of the grossest partiality. Nor can it be insisted, that it was the intention of the act of 29th March 1809, to vest arbitrators with powers of deciding according to their caprice, or mere will and pleasure, and absolve them from all obligations to fixed and settled rules. Why else was an appeal granted, wherein those rules must necessarily be the guides of the tribunals, which should ultimately settle the controversy? ' Under the 10th sect, of the act, “the arbitrators were to be sworn or affirmed justly and equitably to try the matters in variance, to examine proper, disinterested, and competent witnesses, to judge of the credibility of their testimony, and to decide on the law, and the facts, that may be involved in the cause to them submitted.” They sit without legal aid, and the powers granted were indispensably necessary to carry into execution the plan of reform of judicial proceedings adopted by the legislature. So far from showing any design to vary the known and established rights of individuals, or to impair the energy of the laws, these powers evince in a forcible manner, the strongest intention to the contrary. To a certain extent, the court have a controlling power over the cause in which the award is made; and a variety of cases may be *put to show the absolute necessity of such right, and the salutary influence arising from the discreet exercise of it.

It is true, that in Browne v. Gibbons, 1 Salk. 207, it was said to be the resolution of all the justices of the King’s Bench and Common Pleas, that in an action upon the case for slander, though the court are bound by the Stat. 21 Jac. 1 c. 16, and cannot increase the costs where the damages are under 405. yet the jury are not bound by that statute, and therefore they may give 10?. costs where they give but 10c?. damages. The English statute runs in the same words as our act of 27th March 1713, sect. 4, 1 Dali. St. Laws 97; that if in actions of slander the damages are found or assessed under 40s. the plaintiff shall have and recover only so much costs as the damages so given or assessed do amount to, without any further increase of the same. It is not perfectly accurate to say, that the jury are not bound by that statute ; because all men are equally bound to obey the laws of their country. The correct ground of that decision is, that the true finding of the jury shall be carried into effect; and when it appeared to be their real intention to find damages above 40s. as was evidently the case, when they find 101. costs in addition to the 10d. damage, (or which must necessarily be presumed, when they give the costs of suit in a trial in a court of record) the court may mould their verdict into legal form, so as to effectuate their intent, and give the plaintiff his costs. It is well known that damages and costs are frequently used in our books as synonymous expressions.

The courts of this state have adopted the same rule of decision in actions of slander, and where the jury have found, in such a suit, damages under 40s. with full costs, judgment is always rendered accordingly. At Nisi Prius and in the Circuit Courts, it has been common in such suits, where damages under 40s. have been found with six cents costs, to inquire of the jury, whether they meant to find full costs or not, and to enter the verdict according to their answer. But where the entry is made with six cents costs, the plaintiff' gets no more costs than damages. Frederitze v. Odenwalder, was an action of slander, removed by the plaintiff into this Court from the Common Pleas of Northampton county; a verdict passed for the plaintiff for twenty-five cents damages with six cents costs, and the Court in banc in March term 1799, were *of opinion, that he was not entitled to costs. And in Stuart v. Harkins, before cited, where referees in slander found one dollar damages with costs, we were of opinion, upon full argument, that the plaintiff should recover no more costs than damages, and affirmed the judgment of Mr. President Rush given to the same effect.

I well recollect the cause of M’Kissom v. Steel et al., wherein I was of counsel with the plaintiff, tried at York Nisi Prius. It was trespass and false imprisonment against a justice of the peace, constable and plaintiff below, for confining the plaintiff above in a cause not within the jurisdiction of the justice. We had removed the cause from the Common Pleas, and urged to the jury upon the trial, that the plaintiff after sustaining a gross injury, might be subjected to the payment of the costs, if he did not recover 501. damages. The plaintiff' was a poor man and had been hardly dealt with. M’Kean C. J. charged the jury, that damages were their peculiar province, and should they think proper to find a sum in damages under 50i., they might protect the plaintiff by finding full costs ; which they found accordingly with 100 dollars damages. Mr. Sergeant for the defendants, afterwards in April term 1791 contended, that judgment should be entered for the plaintiff for the damages without the costs. But the court denied his motion, and compared the suit to an action of slander, and judgment was entered agreeably to the verdict.

But the striking difference between all those cases and the present one is this. In causes of action of a vindictive nature, which arise peculiarly ex delicto, there cannot in the nature of the thing be any settled measure of damages. The jurors or referees estimate the injury from their own individual feelings, and the consequences of such acts in social life; and they may deem it eligible to assess a particular sum in damages, beyond the costs, which may be deemed an adequate compensation for the wrong done. On such subjects, there may be great diversity of opinion in well informed minds. But here the cause of action arose ex contractu ; and there was a settled measure of damages, which might be calculated with the utmost accuracy and precision. It becomes no prudent man to overstep the line, which the wisdom of the community has drawn in order to repress a state *of litigation. The jury are to give costs where they are recoverable. If they do not, the court will on motion order the costs to be taxed, and endorsed on the postea. Hull. Law of Costs 623. But to permit jurors, referees or. arbitrators, to alter and change the municipal code of laws, and substitute therefor, their, own idea of the hardship of particular cases, tends to confusion and uncertainty. Let them judge of facts according to the suggestion of their judgments and consciences; when these facts are found, let the language of the law be the rule as to the costs. In Walker et al. v. Smith, in the Circuit Court of the United States for this district, the jury found for the plaintiffs 468 dollars 44 cents; but conceiving it to be a hard case, added, that the plaintiffs should pay the costs. But this was at once abandoned by the defendant’s counsel, on general principles ; and the court declared, that the plaintiffs were clearly entitled to costs, 4 Ball. 390. And in Guier v. M’Faden, 2 Bin. 587, where a report was found for the plaintiffs for fifteen dollars and the costs, the court determined that the sum found would not carry costs, unless there was an agreement in the rule, that the referees should have a power over the costs, or the plaintiff had made affidavit before bringing the suit, that he believed the debt was beyond the sum. within a magistrate’s jurisdiction. The court were clearly of opinion, that the legislative restriction with respect to costs, was equally binding on courts, juries, and referees; and that neither tribunal could fly in the face of the law and say, the defendant shall pay the costs, in a precise case, where the legislature had declared in express terms, the plaintiff' shall pay them.

The supplement to the arbitration law of 9th April 1807, s. 2, 8 St. Laws 178, has enacted, that where the defendant has appealed from a judgment of a justice of the peace, and on such an appeal procures an abatement of the same judgment, he shall be allowed his daily pay of fifty cents and costs, where he does not exhibit new evidence. Here the defendant below has obtained a deduction of 28 dollar’s 36 cents from the judgment of the justice, without exhibiting new evidence; and he and not the plaintiff' is entitled to costs.

I am therefore of opinion, that the judgment rendered in the Court of Common Pleas of Centre county be reversed.

*Brackeneidge J.

I concur on the first point, that in this case a writ of error lies. On the second point, I observe, that a statute denyiug costs must be on the ground of checking the vexatiousness of bringing actions, where bud small damages have been sustained; or the troubling a superior court with these, either by actions originally brought, or removed from an inferior jurisdiction. Will there not be cases out of the reason of the statute, and therefore not within the statute? Can these be specified in the statute? Is it practicable, or is it necessary ? Are not the courts of law competent to note these; and have they not the power, as in all other cases, by the common law, to say what cases are within the meaning, or not within the intendment of the statute ?

But what exceptions can there be, of which we may suppose them to have a right to judge?

Where it can appear that the action was not vexatious in the bringing or removal, the reason of the statute does not hold; and this may be inferred from the sense of the jury on the subject, giving costs even in a ease of small damages. Independent of this, where the law admits evidence to go to the jury, not in justification of the trespass, but in mitigation of damages, and the jury considering this give small damages, but costs, are the court precluded from sanctioning it by a judgment, or rather are they not bound to give judgment? Iiow can a party know what defence will be set up of a nature to mitigate ? He looks only at the wrong sustained, and is not bound to anticipate what may excuse the defendant. The occasion and manner of speaking words, may reduce the damages, and the jury may think the case an exception to the statute. Under the statute of 21 James 1, c. 16, giving no more costs than damages in a recovery under 40s., by a resolution of all the judges, the jury are not bound by the statute, and may give 10Í. costs, where they give but 10A damages. 1 Salkeld 207.

The small means of the defendant given in evidence may reduce the damages, in an action for words or trespass.

The 22d and 23d of Cha. 2 was held not to extend to a trespass where the defendant justifies. 2 Levins, 234.

“ The common law did not professedly allow any costs, the amercement of the vanquished party being his only punishment ; though, in reality, costs were always considered and included in the quantum of damages, in such *actions where damages are given; and even now, costs are always entered on the roll as increase of damages by the court.” 3 Black. Com. 399.

Why is it necessary that the jury give some costs in order to enable the court to make this increase? Would not the verdict carry costs without any finding as to this particular ? It would seem not; and why ? I know not unless that it may appear that costs have not been included in the damages. For if they had included them in the damages, might they not still say we have, and therefore no costs. If they can exclude costs by their finding, notwithstanding the statute, why not give them, when it may be no more than to say, we have reduced the damages with a view to that. It is for the benefit of the defendant; because, otherwise, they would be under the necessity of giving damages to the amount that would carry costs.

In an action for a breach of contract, where the damages are matter of estimation, why may not a jury exercise a discretion as to costs ?

Where the demand is for a sum certain, and is reduced by a set-off, it is not within the statute as to costs.

Even where no set-off, may there not be circumstances that will repel the imputation of vexation, in bringing or removing actions; and shall a court and jury be precluded from considering these, existing in the nature of the case, or coming out in the evidence.

On an appeal from a justice, or from referees, the rejection of testimony, on rigid rules of evidence, which testimony was before the justice or the referees, might account for the not establishing as much on the appeal, as before the justice or the referees, and rebut the imputation of delay or vexatiousness intended in making the appeal.

What a jury may do, referees may do. M’Laughlin v. Scott, 1 Binn. 61, is in point.

I have always construed limiting jurisdiction, and not allowing costs, as meaning no more, than that costs shall not follow, as an appendage, or incident of the judgment.

It is a maxim of our law as of the civil, that victus victoñ in expensis condemnandus est; and before the statute of Gloucester, these were included in the damages. They are due ex debito justitice ; and laws disallowing, are to be liberally construed in favor of this equity. *The denying an appeal to a court and jury, but under penalty of paying costs, unless an equal sum is recovered, is in derogation of the trial by jury, and ought to have a strict construction.

I incline, therefore, to affirm the judgment of the Court of Common Pleas.

Judgment reversed.

[Commented on in 4 S. & R. 419 ; cited in 6 S. & R. 39 ; 13 id. 231; 14 id. 346 ; 10 Wr. 235 ; 9 S. 334.]  