¶1—The right to the costs of a proceeding reversed by certiorari, depends on the relative amount recovered or abated by the subsequent judgment; and they are given as a penalty for vexing the opposite party with an exception to form, while the merits are with him. The provision of the statute, therefore, is applicable, both in its letter and intent, but to cases where there is a judgment which may be compared with a preceding one for the same cause of action, as a final test of the merits ; and it is consequently not applicable to the reversal of an execution. Here there was no judgment when the execution was reversed—it was, in fact, reversed for that reason —and there is nothing to compare with the judgment rendered subsequently. The case is certainly not within the letter of the statute, which, being a penal one, is not to be extended by inference or implication. But even if its principle might be carried beyond the letter, we could not say that the reversal was for matter of form, uhconnected with the merits, or that the purpose of the statute was to fix a defendant, in any circumstances, with costs for not submitting to execution before judgment, because the penalty would be inflicted with equal justice for not submitting to it before suit brought.
¶2Judgment of the court below reversed, and judgment rendered here for the defendant below.