Sawyer v. Bancroft ( 1839 )

Shaw C. J.

delivered the opinion of the Court. In the present case, the plaintiff commenced his action before the Revised Statutes went into operation, and laid his ad damnum at a sum over $100. The action was tried in the Court of Common Pleas, after the Revised Statutes went into operation, the plaintiff recovered a sum less than $100, and the defendant appealed." On a trial in this Court, the plaintiff recovered a less sum than at the trial in the Court of Common Pleas.

By the Revised Statutes, c. 121, § 6, 9, if they are to govern, the plaintiff would not be entitled to full costs, but the defendant would be entitled to costs after the appeal. By the law as it stood before the Revised Statutes, the plaintiff in this event would be entitled to costs. The action being brought before the Revised Statutes took effect, and the appeal being taken after, the question is, which rule shall govern. This depends upon the construction of the repealing and saving clauses of the Revised Stat. c. 146, § 5.

The question what is a vested right, and what a mere regu lation of the proceedings, is often a difficult one, and the present case is not free from doubt.

As the right of appeal depends on the ad damnum, which is fixed at the will of the plaintiff, and as the question of costs depends upon the recovering more or less in a case where the ad damnum is over $100, the Court are of opinion that the right to recover, and the liability to pay costs, depend upon the act done before the Revised Statutes were oassed. As no act was done or step taken by the plaintiff after the Revised Statutes passed, affecting this question, the Court are of opinion that the costs have been rightly taxed, according to the law as it existed before the Revised Statutes were passed, when the action was brought. This rule, we think, will but carry into effect the intent of the legislature.

Motion to disallow the plaintiff costs, and to tax costs for the defendant, overruled.