
    Harvey Champion, Plaintiff m Error, versus Levi Brooks.
    A writ of error will not lie to. the Circuit Court of Common Pleas, where an appeal lies to tills Court, notwithstanding the statute provision respecting the costs upon appeal.
    Where an appeal lies, the judge below is not bound to allow a bill of exceptions.
    The writ of error was sued out, in this case, to reverse the judgment of the Circuit Court of Common Pleas, holden for this county in January last, in an action of trespass quare clausum fregit, brought in that court by the plaintiff in error against the defendant in error.
    The general issue was pleaded and joined, it being agreed that under it the defendant might give in evidence a special justification, in the same manner as if he had pleaded it. There being a verdict for the defendant, the plaintiff" filed his bill of exceptions, as at common law, to the directions of the Court to the jury, which, being sealed by the presiding judge, became part of the record of the action. The plaintiff in error relied on the misdirections of the court below for obtaining a reversal of the judgment.
    
      Ashmun,
    
    for the defendant in error, objected that an appeal lay from the judgment complained of, and therefore a writ of error did not lie.
    
      Bliss for the plaintiff in error.
    It is true that an appeal lay in this case, the plaintiff having alleged his damages at more than one hundred dollars. But by the statute,  which gives the appeal, where a plaintiff appeals, and upon the appeal recovers not more than one hundred dollars, he shall not only recover no costs him self, but the defendant is entitled to his costs. This, in an action of this kind, is *a penalty which a plaintiff ought not to be subjected to, when justice can be done in another way, as here by a writ of error. It was with an eye to this proceeding, that the plaintiff spread his whole cause upon the record by his bill of exceptions, that justice might be obtained without risk of punishment for seeking it.
    
      Ashmun.
    
    The plaintiff has put on record his claim for two hundred dollars damage. It is not now competent for him, by acknowledging that his just demand is less than half that sum, to entitle himself to a writ of error, which the Court have repeatedly refused to sustain, in cases where an appeal lay.
    The action standing continued nisi for advisement, the opinion of the Court was delivered at the succeeding November term in Suffolk by
    
      
      
        Stat 1811, c. 33, § 4.
    
   Parsons, C. J.

The original action was trespass quare clausum, fregit; to which the defendant pleaded the general issue, which was joined; the parties agreeing that under this issue the defendant might give his justification in evidence. On the trial, a verdict was returned for the defendant, and judgment was rendered thereon. The plaintiff did not appeal, as by law he might; but filed a bill of exceptions, which having been allowed by the court below, he now brings error to reverse the judgment.

On inspecting the record, it would seem difficult to support the judgment. But of this we give no decided opinion, as a previous objection to maintaining the writ of error is first to be disposed of. The objection on the part of the defendant is, that error does not lie in this case, because the plaintiff had another remedy by appeal. And it is our opinion that this objection ought to prevail. The statute giving an appeal must be construed as taking away the remedy by error in all cases in which the party aggrieved had opportunity, and might have appealed.

This construction, as a general rule, was settled in the case of Savage vs. Gulliver. And a case in which the party against whom the issue is found has tendered and had allowed a bill of exceptions, is within the reason * of the rule. On appeal from a judgment rendered on verdict, amendments may be made in the declaration or pleadings on reasonable terms, when the justice of the case requires it; and in consequence thereof, a new issue in fact may be joined and tried by the country. As no bill of exceptions will be necessary in that case, no disputes can arise respecting the manner in which it may be drawn, or the conduct of the judge below in allowing it. But if error lies instead of an appeal, because a bill of exceptions is allowed, all this useful and discretionary power of the Court cannot be exercised ; and our only authority will be to affirm or reverse the judgment of the court below. And if the error, on which a reversal is ordered, is such that a new trial be had at the bar of this Court, yet it will be a trial only of the former issue.

Where an appeal lies, the judge below is not obliged to allow a bill of exceptions ; and it would be unreasonable that the party prevailing below should be obliged, against his consent, to submit to the less beneficial proceedings by error in the superior court, instead of an appeal, merely because the judge thought proper to indulge the adverse party with the allowance of his bill of exceptions, when he had no legal claim to any such allowance.

As this case, therefore, appears to us to be within the general rule, judgment must be entered, that the plaintiff take nothing by his writ of error.

It appears, from what was said at the bar, that the intention of the plaintiff, in bringing the question before the Court by writ of error rather than by an appeal, was to avoid the operation of the late statute for establishing the Circuit Courts of Common Pleas. As to the wisdom of the provision alluded to, we give no opinion ; but we cannot consider it as repealing by implication the provisions of the laws respecting appeals, and the practice under those laws.

We can, in this case, relieve the plaintiff in error, by granting him a review, if, on his application, it should appear * that he has not had justice done him, and that his not claiming an appeal arose, not from his own loches, but from the misapprehension of the parties, and of the lower court. 
      
      4 Mass. Rep. 171. (a) [In t arms vs. Blanchard, (6 Mass. Rep. 4,) where the defendant appeared at the first term of the Common Picas, and alflerwards suffered a default, it was held he could not maintain a writ of error. But m Putnam vs. Churchill, (4 Mass. Rep. 516,) where the defendant in the Common Pleas agreed that he would not appeal, it was held that he might maintain a writ of error. In Vallier & Al. vs. Hart & Al., (13 Mass. Rep. 300,) where one of the defendants before a justice of the peace was a minor, held that defendants might maintain error. And in Skipwith vs. Hill, (2 Mass. Rep. 36,) and Smith vs. Rice, (13 Mass. Rep. 512,) it was held that any party having had due notice of a suit, and an opportunity to appeal, cannot maintain error; but if he have had no notice of the suit, he may sustain a writ of error. But in Hememoay vs. Hicks, (4 Pick. 407,) it was held that the right to file exceptions was not equivalent to the right to appeal, and that judgment having been rendered on default, error would error would lie. — Ed.]
     