
    
      David Barlow vs. Aaron Burr.
    
    That-no judgment is to tie rendered for costs, in an action dismissed for the want of.jurisdic.tion in the magistrate, before whom the action was. first brought.
    In such case thefilaintiff cannot have judgment for the costs of this Court, when the cause i§ removed here by.defendant on motion; otherwise, had it come by ■ writ of Error.
    Tgis . was an action brought before a justice of the peace, upon a note of less than one hundred dollars. The defendant appeared, and pleaded to the jurisdiction of the justice, that he was a Deputy Collector of the United States, under the authority of Congress. . This plea was overruled by the justice ; and the defendant answered over, pleading to the jury, and obtained a verdict. The plaintiff appealed to the County Court. There the defendant again urged his objections to the jurisdiction of the justice. ' The County Court, .finding the truth of the .plea to the jurisdiction established, dismissed the action. The defendant claimed judgment for his costs. .Upon this point, the court decided against him ;-, and he excepted to the decision, and the cause was removed to this court for a revision of that question.
    
      Smalley and Adams for the defendant. It is undoubtedly true that this court may have dismissed causes for want of jurisdiction without cost to either party : but, in all those cases where costs have been disallowed, the court had no jurisdiction of the subject matter of. the action — and that fact appeared by the plaintiff’s own showing on the face of the declaration. Where the want of jurisdiction is apparent from the process or record, the court are bound, ex officio, to dismiss the action — and, in such case they cannot tax cost; because they would thereby assume the jurisdiction which is deniedbythe record. But whenever, on the face of the process, or record, the court have jurisdiction, and are bound to entertain the suit, and either party contests this jurisdiction, by pleading some fact on which issue is taken, the court do exercise jurisdiction, — and, on dismissing the cause for this new matter, must allow costs. — 12 Mass. 367, Thomas vs. JTTiite. — 3 Id. 26, Walton vs. McNeil, in Notes-. In this case the court have jurisdiction of the subject matter, and all the proceedings are prima facie regular ; but the defendant, by plea, shows an extrinsic fact, by which it appears to the court that they are irregular, and on that ground it is dismissed. There can be no reason for denying the defendant costs in this case, that would not apply with equal force, to all cases, where the suit is abated, or dismissed, for some irregularity in the plaintiff’s proceedings.
    
      Ho>/ce and Hunt, for the plaintiff. — It will be contended by the plaintiff that the court, not having jurisdiction of the parties, nor the subject matter, all the proceedings were void, and neither entitled to any cost, they being entirely out of the reach of the court, and the court could no more render judgment for cost, than they could sustain and try the cause, and render judgment for the plaintiff to recover damages and cost. The justice having no jurisdiction, the county court could have none; this being an ap-pelate jurisdiction, and not an original one.
   Hutchinson, J.

announced the opinion of the court. It appears not very consistent that a court should take jurisdiction of an action for one purpose and not for another : for the purpose of rendering judgment for costs, and not for the purpose of trying the merits, and ascertaining which party ought to recover. At common law, a man sued before a court that has no jurisdiction of the Suit, may bring -bis action and recover his costs; but cannot tax them,and have judgment for them,in the suit dismissed, for want of jurisdiction. In the case cited from 12th Mass. R. the court awarded costs, on the ground that they had jurisdiction of the action, it being upon a probate bond, apparently within their jurisdiction expressly given by statute; but the defendant’s oyer bf the condition of the bond showed want of jurisdiction. They say the want bf jurisdiction is made to appear from the defendant’s plea,on which an issue must be tried before judgment. Butin thecase of Williams vs. Blount, 2 Mass. 207, the court refused cost to the defendaht; saying the court below had no jurisdiction of the cause. In the case now under consideration; there was nb jurisdiction in the outset; the magistrate,not being legally such, .cobid have no jurisdiction of any 'cause. Yet this could not appear of record, but by plea; and this plea was overruled in the first instance, the court not considering that our constitution referred to such offices as deputy collector. Where there never was any jurisdiction, the proceedings must be a nullity, in whatever way the Want of jurisdiction appears. If there be nb original jurisdiction,there canbenone appellate, properlyspeaking.

It would not be inconsistent for the Legislature to pass a law making provision that, in all cases, the court dismissing an action, for want of jurisdiction, shall tax cost for the defendaht. This would give jurisdiction for that particular purpose, and that only : and would do as ample justice between the parties, as for those costs to be recovered in a separate action brought for that purpose. But, while the Legislature have made no such provision, and we have the common law for our guide, we should transcend its limits, were we to render judgment for the defendant to recover his costs. The judgment of 'the 'County Court must he affirmed.

Mr. Bunt, then, moved the court to allbw to the plaintiff h'iis costs before this court in litigating th'e question brought here from ■the County Court by the defendant; urging that this motion of the defendant, bringing up the action, is in the h ature of a writ of error. But the same was not allowed, the court saying, that, though the removal of the causé, is ás a writ of error to bring up the cause, yet it only brings up the caxise, arid brings with it, to io this ..court, the same jurisdiction the County Court had. In that respect it operates like an appeal from the decisioniof the County Court upon a question of law apparent upon the record : whereas a writ .of error gives to this court a new jurisdiction, fully competent for the taxation of costs, as well as affirming or reversing the judgment complained of.

Smalley and Adams, for the defendant-

Royce and Hunt, for the plaintiff.

JVo costs are allowed to either party:.  