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 *490the 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" court="Mass." date_filed="1806-11-15" href="https://app.midpage.ai/document/williams-v-blunt-6402958?utm_source=webapp" opinion_id="6402958">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 *491io 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:.