dinandis judiciis, loci consuetudo ubi agetur, etsi de negotio alibi celebrato, spectetur."

It is therefore the opinion of the court that the plea in bar is not good. Consequently the judgment on the demurrer must be, that it appears to the court that the rejoinder is bad and insufficient in law, &c.

< Simeon Nelson, plaintiff in error, v. William Andrews.' This was a writ of error brought to reverse a judgment of the court of common pleas for this county rendered in May, 1800. The original action, with all demands between the parties, was referred in the court below and the report of the referees was that Andrews, who was original plaintiff, should recover six dollars and sixty-nine cents damage and costs of reference, with one quarter part of the costs of court. The court, notwithstanding this report, gave judgment for full costs of court, and for this error the present process was instituted.

Bigelow, for the plaintiff in error, read the 3d section of "an act for the jimitation of personal actions and for avoiding suits at law," and the proviso annexed to that section, which last is in these words, "provided always, that where judgment shall be rendered upon the report of referees, full cost shall be taxed for the party recovering, notwithstanding the judg ment be under four pounds, unless a different adjudication respecting the costs shall be made from the report itself." And he observed that in this case, the referees having made a different adjudication, the judgment of the court below ought to have been conformed to the report. And he further insisted,

1st. That for this error the judgment must be reversed in toto, and for this he cited Lampen v. Hatch (1) and Cunningham's Law Dict. Title Erro -and

2d. That the plaintiff in error was entitled to costs upon the writ of error. (2)

Ward, on the other side contended,

1st. That the judgment in question was not erroneous. The statute gives full costs to all parties recovering damages by the report of referees, and referees excceded their commission when they made their award respecting the costs. As they had no authority on the subject, the court were right in giving full costs. But

2dly. If the judgment is erroneous in this respect, this court is competent to set it right by reversing so much of it as is erroneous, viz. three fourths of the full costs: which last being 30 dollars 25 cents, the most that

(1) 2 Str. 934.

(2) Ferguson v. Rawlinson, 2 Str. 1084. Cro. Car. 175, 145. Penruddock . Clerk, Cro. Eliz. 659. 5 Rep. 101. S. C.

the plaintiff in error is entitled to recover, is 22 dollars 76 cents, 1 Str. 188. and

3dly. That this being an error in matter of law only, the plaintiff in error was not entitled to costs upon the writ of error.

Bigelow, in reply, cited from "an act prescribing the forms of writs," &c. passed Oct. 30, 1784, sect. 9.-" in all actions as well those of qui tam as others, the party prevailing shall be entitled to his legal costs against the other." And he contended that writs of error were within this provision.

Parker, J. I am very clear that this judgment is erroneous. A submission of all demands between the parties was a submission of the question of the costs of the suit. If it were not so, the practice has uniformly prevailed, and been acquiesced in. In some cases referees award a large sum in damages, and yet determine that the party, in whose favour they make their award, shall recover no costs. The practice having thus obtained, I think that the referees did not exceed their authority, and that the court below, having accepted the report, ought to have conformed their judgment to it. I am therefore of opinion that the judgment of the common pleas should be reversed in part, viz. for the amount of three fourths of the costs allowed and that the plaintiff in error is not entitled to his costs in this process, the error being entirely in matter of law.

:

Sewall, J. The correctness of the judgment brought into question by this writ of error depends on the authority of the referees to make their award respecting the costs. Without looking into English authorities, it is suf ficient that the practice here has been constant and uniform, and has been recognized by the legislature. The court of common pleas ought then to have made their judgment conformable to the report in this case. Not having done so, the judgment is erroneous. It can however be set right, without a reversal in toto, and the error being in matter of law only, this must be done without costs.

Sedgwick, J. The report in this case expressly limited the costs to be recovered by the plaintiff to one fourth part of the legal costs of the suit. That report was accepted by the court, and yet judgment was rendered for the whole of the legal costs. Is this error? I am most clearly satisfied that it is. On a general submission of all demands, as was the case here, nothing relative to costs is specifically submitted; but in practice referees have uniformly awarded respecting them, sometimes for the whole, sometimes for part, and sometimes for none; and this practice has been sanctioned by the court. The statute gives no express authority to the referees for this purpose, but it clearly supposes such authority to exist. The referees, then, having had authority to make this part of their report, the party ought to have taken his judgment, accordingly, for the one fourth part of the costs, and not having done so, but the judgment having been rendered for the whole legal costs, is for that reason erroneous

Where part of a judgment can be reversed, and the rest remain, it is competent for this court to set it right. The error here being in matter of law, there can be no costs on the writ of error.

Parsons, C. J. The report having been accepted by the court below, they ought to have pursued it in rendering their judgment, unless this part of the report can be rejected as surplusage. But if, by the terms of the submission, the referees had jurisdiction of the question of costs, their award coneerning them is not to be rejected. This practice is of so long standing that it cannot now be shaken, if we were so disposed. But the practice may be considered as beneficial. There may be reasons, respecting the allowance of costs, which in the minds of referees would very properly have weight, although they could not be admitted in a court of law. It may appear to them, that a creditor has unduly harassed his debtor for a trifling demand or has brought his action before the cause of action had accrued. Many other reasons may be conceived. It was therefore both legal and expedient that these referees should take the subject of costs into their consideration, and make their award concerning them. The court having accepted the report were bound by it, and ought to have followed it in rendering their judgment. There is no doubt then that their judgment is erroneous. As the error extends to part of the judgment only, it must be reversed for that part, and will remain good for the rest.

Let the judgment be reversed for three quarters of the costs: and as the error was of law, and not of fact, the plaintiff in error is not entitled

to costs.

1

ARTICLE II.

THE HONEST POLITICIAN,

PART I.

Containing the first eight numbers; together with a publication under the signature of Vindex, relative to the same subject. Addressed to the president, and published in the district of Columbia about the middle of February last. Baltimore, 1808, pp. 65. twenty-five cents.

A

S this pamphlet contains a discussion of some points in the law of nations, as involved in the capture of the Chesapeake, which are particularly interesting to the United States at this juncture of our affairs, it is fairly included within the objects of the Law Journal. With what are called the politics of the day, that is to say as the word is vulgarly understood, whether general Washington was a peculator and Mr. Adams acted under the influence of British gold, as is asserted by one party, or whether their successor, Mr. Jefferson, be the tool of Bonaparte, and would be willing to add this country to the ample chart of his possessions, are questions which cannot be discussed in these pages. But whether the ships of war of one country are justifiable in searching those of another, what are the duties which good faith requires from a neutral nation towards a belligerent, and how far it is consistent with the obligations of national honour and individual honesty to afford protection to the seamen of our neighbours, may surely be investigated without affecting the sensibility of those who fear that this is to be a party work. The pamphlet under consideration is ascribed to the pen of a gentleman, who has long occupied a conspicuous place in the front rank of the legal characters of this country. This is the place of his birth, and he is united to it by the most intimate ties of interest and affection. He therefore can have no other object in this discussion than to obtain a fair decision. He informs us that he is a native American and that his intention in writing was to prove " that the affair between the Leopard and Chesapeake, which has been seized upon with avidity by our administration to widen the differences between us and Great Britain, and which he sacredly believes was planned for that purpose, originated in the misconduct of our government, and that in truth our government was the aggressor."

Our naturalization laws seem to regard man as in a state of nature, with a perfect right to violate the contract of obedience which he has entered into with his government in consideration of protection being afforded to him in his life, liberty and property. Hence the outcasts of other countries, the very sweepings of their jails are welcomed to this asylum of oppressed humanity. They are immediately enfranchised with the rights of citizenship, and they quickly convince us of the value of the acquisition, which we have made, by opposition to our government and hatred to that which they have deserted. On the affair of the Chesapeake it has been contended that

no government is bound to deliver to another those fugitives from justice which have taken refuge within its jurisdiction. If this doctrine should be carried into execution crimes may be committed with impunity and laws may be enacted in vain. But it is a doctrine so pregnant with pernicious consequences, so radically vicious, that the good sense of the individual and the policy of the nation alike revolt against its dangerous influence. In the constitution of our government we have recognized the necessity of delivering up fugitives from justice;* and if the doctrine be correctly applicable to states why should it not be extended to nations, according to the civil law sub mutuæ vicissitudinis obtentu et in juris subsidium? The Honest Politician says that he who harbours a robber participates in his guilt, and, by a parity of reasoning, he contends that a nation which protects a criminal, makes the crime its own. In answer to the 27th article of the convention between this country and Great Britain, commonly called Jay's treaty, he says, that articles in treaties are frequently inserted in cases which had been amply provided for by the law of nations; and that, therefore, although that article, by which the nations were bound to deliver up fugitives to each other, has expired, still the general law is in force. He continues,

"Besides, that article only extended to persons who are charged with murder or forgery. Was it therefore in existence, it would not extend to mutineers or deserters. As to these, the expiration or continuance of that treaty cannot alter the case. The right of a government to claim these, must depend on other ground than the treaty. And here, before I end this essay, let me just observe, that the right to claim criminals, whether it be a perfect or an imperfect right; whether sanctioned by the law of nations, or dependent only on the comity of governments, yet it belongs to a state of peace. It is the same, though every nation in the universe were in the utmost

In the case of Mr. John Montgomery, now of this state, who was demanded by the governor of Pennsylvania from the executive of this state, the requisition, as I understand, was rendered nugatory by a disagreement between the two governors, as to the spot, where the one should deliver and the other receive him.