O. B. Hart, et al., Appellants, vs. W. M. Bostwick and wife, Respondents, 14 Fla. 162

RANDALL, C. J., delivered the opinion of the court. This was an action commenced by the appellants to recover the possession of certain lands. The appellants assign, for-, error, first, that the court overruled their demurrer to the; second ground of defence set up in the defendants’ answer,, which alleged that the action “ was not instituted within seven years next after the said cause of action accrued, excluding the period of time between the tenth day of January, A.

D. 1861, and the 25th day of October, 1865.” The plaintiffs demurred to this portion of the answer for insufficiency, and the court- overruled the demurrer. The plaintiffs then filed a replication to the answer which was struck out by the court. The effect of the replication was that the plaintiffs abandoned all benefit of exception to the judgment overruling the demurrer, and therefore they cannot assign this for error.

The Judge, however, in his charge instructed the jury in effect that the matter set up in the answer in this respect constituted a defence, and the plaintiffs having excepted to the charge and assigned it as error, it will be considered first. According to the form of this answer, the term of seven years is comprised of a period of time prior to January 10, 1861, together with a term subsequent to October 25,1865, and the question is presented whether there is, or has been since October 26, 1865, a statute in force limiting the time for the commencing of civil actions.

It is evident that the pleader had in his mind in framing this answer the third

section of

Article XV of the Constitution of 1868, which provides “ that all laws of the State passed by the so-called General Assembly since the 10th day of January. A.

D. 1861, not conflicting with the word cr spirit of the Constitution and laws of the United States, or with this Constitution, shall be valid. * * * Provided, that unless otherwise provided in this Constitution, the statute of limitations shall not be pleaded upon any claim in the hands of any person for the period of time between the 10th day of January, 1861, and the 25th day of October, 1865, whether proceedings at law had been commenced before the 25th day of October, 1865, or not.”— •Whether this provision of the Constitution is applicable to the present case or not, the defendants do not claim the benefit of the time between the dates mentioned in. the answer ; but they do claim that the period of time since the 25th of October, 1865, should be computed, and that by in-, eluding this period, .the full term of seven years has elapsed since the plaintiffs’ cause of action accrued, and that therefore the action is barred under the first and second sections of “

an act to amend the several acts concerning the limitation of actions,” approved January 8, 1818. If any statute limiting the time for the commencement of civil actions was in operation after the 25th day of October, 1865, it was proper to compute the time elapsed since that period, but if there was no such statute in force this time should not be computed. The act of 1818 (chapter 112) provided that an action for the recovery or possession- of real estate shall be bronght within seven years next after the right or title thereto, or cause of such action shall accrue, and not afterwards. The third

section of

an act providing for the stay of executions, approved Dec. 13, 1861, (chapter 1271,) says that “ the statutes of limitation now in force in this State, in relation to civil actions of every description, be and the same are hereby suspended, and shall have no operation or effect so long as this act may continue in force and unrepealed, reserving all rights and defences under the existing statutes of limitation; provided, however, that nothing in this act shall be construed so as to prevent any defendant from pleading said statute or statutes of limitation in any cause wherein the same shall have run before the passage of this act.” It was contended upon the argument that this act of Dec. 13, 1861, had been declared unconstitutional and voidin-the case of Garlington vs.

Priest, (13 Fla. 559,) but it will be seen that that case came under the first

section of the act, 'which related-to an entirely different subject. It was deemed that the first

section was in conflict with the spirit of the Constitution of the United -States, and with the existence of the union of the States, and, therefore, void from the beginning ; but there is nothing in the third

section making it liable to such objection. It does not follow that because one or more sections of a lawr may be inoperative or void, the whole act is therefore void, and we cannot so hold in reference to the third

section ; and as there seems to be no valid objection to the operation of the latter, it is considered as in force from the time of its. approval to the present, unless it has been repealed. It is urged that it is repealed by the effect of the proviso to the third

section of

Article XY of the Constitution of 1868, before cited. We do not think so. This clause of the Constitution does not expressly repeal it, nor does it operate as a repeal by implication.

It expressly ratifies all laws passed “ since the 10th of January, 1861, not conflicting with the word or spirit of the Constitution and laws of the United States or with this Constitution ;” and the proviso enacts that “ unless otherwise provided in this Constitution, the statute of limitations shall not ..be pleaded upon any claim in the hands of any person,” so as to include the period of time between January 10, 1861, and October 25,1865. The act of December 13, 1861, refers to the time of commencing “ civil actions” of every description. This

section of the Constitution relates to pleading the statutes of limitation upon “ claims in the hands of any person” from a period cmterior to the passage of the act of 1861, down to October 25, 1865. Whether this constitutional provision is intended to embrace the claim of title or the possession of real property, it is not necessary here to determine; but it is certain that the act of December 13, 1861, does embrace it, and suspends the operation of the statutes of limitation with regard to the commencement of all civil actions.

This act has not been repealed by any act of the legislature, or by force of the Constitution of 1868, and is therefore in force. Its effect is to prevent parties from pleading the lapse of time, occurring after its approval, as a defence in any civil action, and it saves such defence where the time had fully elapsed before its approval. The necessary conclusion is, that the second answer of the defendants does not set up a defence under the statute, and that the charge of the court in that respect was erroneous. 2.

The second ground of error alleged is that the court refused to allow'the bill of sale or deed from John R. Hogans to Wm. G. Dawson to be read in evidence. From tbe statement of the case it will be seen that this paper,'although purporting in terms to convey all the title and interest of Hogans, either in possession or expectancy, and to acknowledge payment of the consideration therefor, was without a seal. It was contended that this was a good conveyance under the civil law, as it is claimed that it was executed and delivered before the adoption of the common law in Florida.

The date of the paper was July 24, 1823. The common law of England and the statutes in aid thereof, down to the 4th year of James I., were adopted by the Legislature of Florida on the second day of September, 1822, to take effect in East Florida Oct. 1, 1822. (Laws of 1822, p. 53.) Again, the common and statute laws of England were enacted by the Legislature June 29, 1823, by the statute now found in Thompson’s Dig., 21. (See laws of 1823, -p. 13.) By

an act regulating conveyances approved August 31,1822, (Laws of 1822 p. 49,) it was declared that no estate of inheritance or freehold for a term of more than two years should be conveyed, “ unless the conveyance be declared in writing, sealed and delivered.” The paper presented lacked a seal and therefore, under the statute, no estate of inheritance passed by the writing alone, and it was properly rejected by the court. 3. The plaintiffs allege that the court erred in allowing the appointment of W. N. Dawson as administrator of W. G. Dawson to be read in evidence.

This was doubtless offered for the purpose of showing that the deed offered by the plaintiffs from I. D. Hart, clerk, &c., administrator ex-officio of W. G. Dawson, was without authority of law, because another had been duly appointed. As the grounds of the authority of I. D. Hart, as clerk and ex-officio administrator, had not been shown on the part of the plaintiffs, it was competent for the defendants to show that another was in fact duly authorized and acting as administrator, and lienee that Hart as administrator ex-officio’had no authority •to convey.

Eor this purpose there was no valid objection to giving the appointment of W. N. Dawson in evidence. After the close of the defendants’ testimony, the plaintiffs offered an order of the judge of the county court, dated March 12, 1828, removing W. N. Dawson from the office of administrator of W. G. Dawson, and another order dated November 17, 1828, directing the clerk to make sale of the real estate, &e. These were objected to by defendants’ counsel on the ground that the order removing W. N.

Dawson, upon the grounds stated, was unauthorized, the grounds being for “ mal-administration practised by the administrator,” &c., whereas the statute only authorized a removal by the Judge for other, causes; and the objection to the second order was, that it was granted befox-e the statute authorizing the clerk to act as administrator ex-officio was passed, to-wit: November 20, 1828. We are of the opinion that the order removing W. N.

Dawson, as administratox’; having been entered of record and not subsequently reversed or set aside, although it may have been granted upon insufficient grounds, must stand ; and wé find by an examination of the laws that the act of the Legislature constitxiting the clerk administrator ex-offico, in case of a vacancy, (as by revocation of letter, &c.,) being “

an act ixx addition to

an act respecting the probate of wills and the granting of letters testamentary and letters of administration, and the duties of executors, administrators and guardians,” was approved December 5, 1825, (see Laws 1825,p.'28,) and not in 1828 as was insisted by counsel, and was in force at the time of the graxxting of the order of sale. 5. The fifth error assigned is that the court erred in his second and third charge to the juxy. • The second paragraph of the charge is exceedingly indefinite, and we ax'e unable to determine its effect upon the minds of jurors.

The third paragraph referred to, relating to the computation of time under the statute of limitations, has already been commented upon in considering tbe first of tbe errors assigned. 6. The sixth error assigned is that the Judge charged the jury as requested by defendants’ counsel in the instructions, numbered 1 to 13, inclusive. It is unnecessary to repeat and notice them in detail. The1 several propositions of law embraced in them appear to have been collated from approved authorities, excepting such-portions as relate to the computation of time in applying the statute of limitations, as already noticed.

Eeyorid this, even if they were not all strictly applicable to the facts-of this ease, (as was insisted,) we discover in them nothing which tends to embarrass the case or to mislead or confuse a jury. ' 7. The seventh error assigned is as follows: “ The court-' erred in refusing to give the charges numbered 1, 3,4, 6, 7,. 11,13 and 14, respectively, as asked for by plaintiffs’ counsel,, and in giving the said charges as modified by the court.” The several instructions prayed by plaintiffs, here mentioned, are correct, so far as we discover, except as will be presently noticed.

The first proposition was correctly stated by plaintiffs’ counsel. The words appended by the court are too indefinite and imperfect to give the jury a clear understanding of the law. The third proposition was also correct. The words added by the court are not applicable to the proposition, and are not material. However, it is not probable that they had any influence against the plaintiffs.

The fourth instruction prayed was as follows : “If the defendants have failed to prove an actual occupation of a part of the lands in controversy, inclosed by a substantial fence, or in some equally notorious way, continuously and without interruption for the entire period prescribed by the statute of limitations, the plaintiffs’ right of entry is not barred, and you should find accordingly, and an interval of ;a month, a week, or even a day is sufficient to prevent that -continuity of possession which is essential to a defence under the statute of limitations.” This, as it was preceded and qualified by the suggestion that the jury must first find that -the plaintiffs had established their right, should have been .-given, and the Judge committed an error in refusing this instruction as prayed, and by adding, “ If you find that Jones ■never was in' possession, the court charges that the charge asked for is law; but if you find that Jones was in actual ipassession, used it, rented or leased, then he is constructively ■in possession the whole time.” This seems to suggest that if “ Jones” was ever in possession, then he was constructively in possession during the entire period of limitation.

The ■views of the Judge are not sufficiently clear and -the jury •may have been misled. As to the sixth instruction and the words added to it by the Judge, taken together, it is entirely indefinite and tends to confusion. The seventh instruction is in substance, that an actual interruption of the possession is fatal to the claim, (of adverse possession,) to which the court íjidded, “ if -the possession is interrupted by adverse possession it is fatal;” thus limiting and confining the interruption of the possession of the defendants to an interruption by an actual possession adverse to that of the defendant.

It must be seen at a glance that this is not correct. The interruption may have been by abandonment and various other causes, and the lands may not have been occupied at all for a long period, which may have broken the defendants’ claim, and deprived the plaintiffs of an antagonist against whom they might have proceeded to enforce their rights.

The 11th instruction prayed by the defendants is as follows : “ If you find from the evidence that the party from whom the defendants or their ancestor, Thomas Jones', derived their claim of title, entered upon the lands in controversy, under a contract of sale with the plaintiffs’ ancestor, Isaiah D. Hart, and that said contract is not proven to have been executed, the defendants are estopped from setting up their possession as adverse, and you should find for the plaintiffs.” An adverse possession must be a possession inconsistent with the title of the claimant.

If, on an agreement to sell lands, the consideration is paid, and the owner consents that the buyer may enter and hold the land as his own, the entry and possession of the buyer cannot be deemed subordinate to the title of the seller, but as adverse and a disseisin. Brown vs. King, 5 Met. Mass., 173; Ellison vs. Cathcart, 1 McMullan, S. C., 5; Drew vs. Towle, 10 Foster, N. H., 531; Paxson vs. Bailey, 17 Ga., 600; 12 Texas, 195; 1 Sneed, 586; 8 Cow., 589; 14 Wend., 227; 14 Barbour, 441.

But the case is different where one agrees to buy and another agrees to sell land and the consideration is not paid, and the party contracting to buy enters into possession, inasmuch as the fair inference then is, that the entry and possession are in subordination to the title of the party contracting to sell, until the stipulated payment is made. Such a case, therefore, constitutes a tenancy at will, or a tnrst, rather than a disseisin. Angelí on Limitations, Sec., 406, and cases cited above.

In Maryland it has been held that where a contract for the sale of land is proved, and a uniform possession of pai;t under it, length of time is no bar to a specific performance being decreed. Somerville vs. Trueman, 4 Har. and McHen., 43; also 18 Vermont, 229; 3 McLean, (U. S.,) 457; 1 Harr. Del., 336. In New York, a lapse of thirty years ox-, it seems of twenty years, will authorize a jury to presume a deed from the original vendor. (4 Barbour, 566.) In Georgia, where thex’e was .a bond for a deed on payment of the purchase money, the possession of the purchaser was held to be adverse. Fain vs.

Gartwright, 5 Geo., 6. That suit was in behalf of a third party, a stranger to the contract. An entry, by one on tlie land of another is an ouster of the legal possession arising from the title, or not, according to the intention with which it is done; if made under claim or color of right adverse to the legal title, it is an ouster; the intention guides the entry and fixes its, character. The doctrine of adverse possession is to be taken strictly and not to be made out by inference, but by dear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner.

An entry adverse to the lawful owner is not to be presumed, but must be proved. Tyler on Eject., 875, citing 1 Johns. 156; 9 ib., 163; 3 Johns. Cases, 124; 2 Bibb’s R., 507; 1 Marsh., 62. One of the cardinal rules which apply to acts of limitation' generally, and which has been recognized in the courts of England and in all others where the rules established in those courts have been adopted, is, that possession, to give title, must be adversaiy, and it cannot be adversary unless it is hostile to the true title. To allow a different construction, (says Ch. J.

Marshall,) would be to make the statute of limitations a statute for the encouragement of fraud — a statute to enable one man to steal the title by professing to hold under it. No laws admit of such construction. Kirk vs. Smith, 9 Wheat., 241; Jackson vs. Birner, 48 Ill., 203. In all eases where a party is in possession of lands in privity with the rightful owners, nothing short of an open and explicit disavowal and disclaimer of holding under that title, and assertion of title in himself, brought home to the owner, will satisfy the law.

Short of this, the party will be regarded as holding in subserviency to the righful title. Floyd vs. Mintsey, 7 Rich., 181. In Williams vs.

Cash, 27 Ga., 507, the court say : “ If the defendant entered under a contract of any sort for a title, the statute of limitations could not begin to. run in his favor until he repudiated the contract and claimed to hold in defiance of the plaintiff’s title and the plaintiff’s knowledge of such adverse holding.” The statute, therefore, does not begin to operate until the possession, before consistent with the title of the real owner, become tortious and wrongful by the disloyal acts of the tenant, which must be open, continued, and notorious, so as to preclude all doubt as to the character of the holding or the’ want of knowledge on the part of the owner.

If he then neglect to enforce his right by action within the period fixed by statute, the loss, as in every other case of the kind, is attributable to his own laches,.and not to the law. Tyler, 877. Where one makes a contract to have a deed, though he enter into possession of the land described by it, he is not in a situation to hold adversely, until the condition upon which he contracts to have his deed is fulfilled, for the simple reason that such a possession is not hostile in its inception. He enters, necessarily subject to the right of the owner to turn him off, if he neglects to make fuil payment.

The possession, therefore, when taken, had not the characteristics to constitute it adverse. It was not hostile. Jackson vs. Camp, 1 Cow., 605; Woods vs. Dille, 11 Ohio, 455. A possession and claim of land, under an executory contract of purchase, is in no sense adverse as to the one with whom the contract is made. But it seems that when one.enters under a contract for a deed with one party, and after-wards takes a deed from another party, his possession from this time is adverse to the first vendor, and if continued, the statutory period will bar liis entry. Jackson vs. Johnson, 5 Cow., 74.

An agreement for a conveyance, the consideration being’ paid, has been held to be tantamount to a deed as a foundation for an adverse possession, (La Frombois vs. Jackson, 8 Cow., 589,) and one entering under an executory contract of purchase may always hold adversely, as against all persons but his vendor. Whitney vs. Wright, 15 Wend., 171; Adams vs. Guerard, 29 Ga., 651; 8 Cow., 589; 15 Wend., 381; 9 Cow., 550; 5 Cow., 74; 14 Wend., 228; 1 Cow., 605.

In the light of authority we must hold that the 11th instruction prayed by the plaintiffs should have been given, and that the court in refusing so to charge committed an error. Whether the evidence in the case was of such a character that the proposition was applicable or material, we will not determine, as the -judgment must be reversed upon other grounds. We treat the question as an abstract proposition, and it receives attention because it is included in the assignment of errors, and was deemed by counsel for appellants as one of importance in the case.

The thirteenth instruction prayed by the plaintiffs is as follows : “If you find from the evidence that the deed under which the defendants claim color of title bears date prior to the 8th day of January, 1848, the defendants must prove adverse possession of twenty years, in order to constitute a bar under the statute of limitations.” This was refused as prayed, and the court instructed the jury that “ the statutory bar is seven years.” The plaintiffs insist that the statute of January 8, 1848, is not applicable, because the adverse possession commenced, if at all, before the passage of that act, and that, therefore, the adverse possession of twenty years is necessary tobe shown by the defendants in order to defeat a recovery against them. - The statute of 1848, limiting the time for the commencement of a suit for the recovery of the possession of lands to seven years from the time the cause of action accrued, provides that the act shall not operate retrospectively, but that it shall commence running from the date of its approval; that the former statute should control until the expiration of seven years from the approval of the act, and not after-wards. ' The authorities seem fully to establish the rule that where mere inchoate rights are concerned, depending for their Original existence on the law itself, they are subject to be abridged or modified by law, and that statutes of this character apply to such rights existing at the time of their passage, provided a reasonable time is given after the pastage of the act, and before it would operate as a bar, for the party to exercise the right.

This is sustained in DeCordova vs. the city of Galveston, 4 Tex., 470; Winston vs. McCormick, 1 Carter, (Ind.,) 56; Gilman vs. Cutts, 3 Foster, (N. H.,) 376; Willard vs. Harvey, 4 ib., 344; Smith vs. Morrison, 22 Pick., 430; Butler vs. Palmer, 1 Hill, 324; Smith vs. Packard, 12 Wis., 371.

In the present case, the law as understood by us is this: If the defendants’ adverse possession, and that of their grantor or ancestor, of twenty years was complete before the expiration of seven years from the passage of the law of 1848, the action was thereby barred ; if it did not expire before the expiration of the seven years from the passage of that act, then their possession, if adverse to the plaintiffs and their ancestor, for the period of seven years since that act was passed and prior to the 13th December, 1861, when the acts of limitation were suspended, entitles them to plead the statutory limitation of seven years.

As to the fourteenth instruction prayed by plaintiffs, we do not see that the jury could have been misled, or that the plaintiffs’ case could have been prejudiced by the modification made by the judge, and it cannot therefore be deemed error that the modification was made. As to many of the questions which we have found it necessary to examine, (because they are suggested by the assignment of errors,) it will be noticed that they are not presented at length in this opinion.

To have done so would have unnecessarily enlarged its bulk without corresponding advantage, because the questions alluded to involve settled principles of law, and the present rulings upon them are made only for the purpose of disposing of all the points raised in this case. A further question is suggested by the record and by the assignment of errors, relating to the additional allowance1 of costs.

The Judge, after the trial of the issues and the rendition of the verdict, made an oi'der to the effect that an additional allowance should, be made to the defendants, who recovered judgment, and for the purpose of estimating such amount, took proof as to the value of the property in controversy, and as to that question only, and allowed the •sum. of. eight hundred dollars. The respondent declined to argue the question before this court.

Section 247 of the Codeisas-follows: “ There may beallowed. to the prevailing party, upon the judgment, certain sums by way of indemnity for Ms expenses m the action, which, allowances are in this act termed costs.” By Sections 248 and 249, costs are allowed of course to the prevailing party in an action for the recovery of real property. By the last paragraph of

Section 254, it is provided that in difficult and extraordinary cases, where a defense has been interposed, or where..a trial has been had, the court may, in its discretion, make a. further allowance to any party, not exceeding five percent, upon the amount of the recovery or claim, or subject matter involved. It is noticed that the amount of such allowance, not exceeding a certain limit, or the making of any allowance at all, in the class of cases referred to, is in the discretion of the court.

The question then arises, When, and in what circumstances, is this discretion to be exercised % Whatever order may be made by the court in the exercise of a pure . discretion is, of course, not subject to be reviewed, and in answering this interrogatory we determine how far this court may review upon appeal an order-making an -additional .-allowance of costs. By

Section 2S8 of the Code, a class of cases, and the amount,of allowances which may be made, in these-cases,, is too well defined to require comment. Those eases are : 1.. Actions for the partition of real property; 2. For the foreclosure of mortgages8.. Actions in which a warrant- of ..attachment,has been issued; 4. An adjudication upon, a will or other instrument in writing; 5. In proceedings to compel the determination of claims to real property. In these cases the amount to be allowed is limited by a-certain percentage.

The case before us is not one of those cases, it being an action to recover possession of real property, and no “ additional allowance” can be made in this casé unless it be a “difficult and extraordinary casé.” An action to recover possession of real property is not necessarily a difficult and ■ extraordinary case, whether the amount or value of the property involved be great or small.

More intricate questions may arise and greater labor and expense may be necessarily required to be bestowed in an action to recover a square foot of land, than in an action to recover real property of greater dimensions and worth, a larger sum of money. Whether the case be- “ difficult and extraordinary,” then, is not determined by the form.of action or the amount involved. This is rendered more clear, if necessary, by the provision that the allowance may be made only in-the event that a defence has been interposed or a trial has been had. Hogeboom, J., in The People vs. The N. Y. C. R. R. Co., 29 N.

Y., 429, well says: “ The case is difficult and extraordinary within the meaning of the Code. The character and magnitude of the .claim, the importance of the interests involved, the length of time.- it has occupied, and the severity with which it has been contested, bring it fairly within the purview-of the section. The case was, therefore, one in which the judge had jurisdiction to act.” In The People vs. Clark, 11 Barb., 343, the court-says upon this point: “It was a case not within the range of common professional experience and reséarch.

It justified, if it did not require, on the part of the defendant, a. consultation with the wisest and most experienced ■ counsel.. It therefore involved the necessity for large disbursements: for legal assistance.” It will be noticed that one. of the grounds to be established preliminary to the exercise of the discretion of the judge irr making the allowance, was the necessity for making large expenditures for the protection of the rights of the party. This is undoubtedly a case which is contemplated by the terms difficult and extraordinary, especially in view of

section 247, which serves as a

preamble to the whole question •of costs, and declares that the allowances are made “by way of indemnity for his expenses in the action.” To impose ■upon the failing - party the payment of a sum of money greater than is necessary to indemnify the prevailing party, would be a punitive judgment, clearly not within the purpose of the law. Costs are recoverable solely upon the principle of indemnity.

The conclusion is, therefore, that the court must be satisfied, before an extra allowance can be made, that the case is a “ difficult and extraordinary ” one; a case beset with more than the ordinary difficulties of litigation, and necessarily justifying or requiring more than ordinary expenditures of money and labor; and this is a question of fact which must be determined upon such evidence as may be sufficient to satisfy the court, and this determination should appear of record. This is not a matter of discretion, but of judicial judgment.

This being determined, the court may exercise its discretion as to making the further allowance, which may be an amount not exceeding five per cent, upon the value of the recovery or of the subject matter involved, but also not exceeding an amount necessary to indemnify the party for his expenses in the action, which amount may be ascertained summarily upon evidence satisfactory to the court. “ There is no doubt, (says Johnson, J., in The People vs. N. Y. C. R. R. Co., 29 N.

Y.) that it is strictly a matter of law when the judge making the allowance undertakes to give the prevailing party any sum beyond what is necessary to indemnify such party for his expenses in the action, upon the facts appearing on the application.” Is an order making a “ further allowance ” subject to review upon appeal ?

In making such allowance there is necessarily an order of the court to that effect, and this order is an “ intermediate order ” — one made after the trial and before judgment, the costs recovered entering into and forming a part of the final judgment An appeal may be taken (Code, sec. 10, sub. 1,) from a judgment of the Circuit Court in an action, and upon the appeal the court may “ review any intermediate order involving the merits and necessarily affecting the rights of the parties.” This intermediate order making a further allowance may not involve the merits of the subject matter of the action, the title or right of possession of the real estate in controversy, although the making of the order involves an examination and consideration of the character of the action and of the proceedings had therein.

It does, however, involve the merits of the application for the allowance upon which the judgment is renclpi-ed, and from which judgment the appeal is taken. The judgment is, first, upon the verdict,, and, second, upon certain facts it awards a sum of money to reimburse the prevailing party. It involves the jurisdiction of the court to make the order, the power to be exercised only, as we have seen, in certain cases and upon a certain state of facts.

The order also necessarily “ affects the rights of the parties,” not to the possession of the property in controversy, but the right of the prevailing party to recover a sum of money from the other. Ch. J. Denio, in delivering the opinion of the court in the case of the N. Y. C. R. R.

Co. before referred to, remarks that “ an order which peremptorily and finally charges a party with the payment of a sum of money, great or small, which he ought not to pay, or with a greater amount than he ought to pay, affects his rights, not in a matter of form, but in substance ; and such was the nature of the order in this case.” Any other

interpretation of the clause referred to would place an unauthorized order or judgment, however illegal or oppressive, beyond the reach of review or supervision by the appellate courts.

Section 10 commences thus : “ The Supreme Court shall have jurisdiction to review upon appeal every actual determination made by the Circuit Court, in all cases,” &c. The writ of error is prohibited by the Code, and an appeal substituted therefor. If the first sub-division of the

section does not allow this court to review the “ merits” of a proceeding which forms the basis of a part of the judgment, it amounts to a denial of justice and may place the grossest errors, the most flagrant violation of private rights, and abuse of public justice, beyond the reach of a corrective. We are satisfied that this was not the design of the law, and we must interpret it with reference to its evident intent in the furtherance of justice.

So far as relates to the power of the Circuit Court to make the order for an additional allowance, to the law and the facts necessary to give such power, to the limitation as to the amount of such allowance, the order is a proper subject of review upon appeal. So far as relates to the exercise of discretion, as to whether the court will allow or refuse such additional costs in a proper case and the amount'proper to be allowed, within the prescribed limits, it will not be disturbed.

In the case before us, the grounds upon which the order for additional allowance was made do not appear, neither does it appear that the amount of such allowance was within the amount necessary to indemnify the defendant for his expenses in the suit. These matters ought to appear in the record in order to support the judgment. For the reasons stated, the judgment of the Circuit Court is reversed and a new trial awarded, and this eaiise will be remanded with leave to the parties to amend their pleadings, as they may be advised, and for such other and further proceedings as may be had according to law.