Inhabitants of Boston v. Inhabitants of York

Mellen, C. J.

delivered the opinion of the Court, as follows.

It was the design of the Legislature to prevent unnecessary appeals, where substantial justice had been done in the Court below. The statute seems to contemplate those cases only where there might have been a fair and full trial on the merits in that Court; but in which the plaintiff might be dissatisfied with the judgment. In the cases of Turner v. Carsley, [ante. p. 15.] and Lunt v. Knight, [ante p. 17.] we have decided that if, after such fair and full trial, the defendant obtains a verdict in the Common Pleas, and on appeal to this Court the plaintiff obtains one in his favour, this is proof of reasonable cause of appeal.— He could not obtain justice without appealing. But the plaintiff cannot lay the foundation of a reasonable cause of appeal merely by witholding proof, and suffering a verdict to be returned against him in the Court below. Nor can he, for the same reason, create this reasonable cause by his own act in demurring to a good plea and then appealing from the judgment; though with the consent of the defendant that the demurrer should be waived and issue joined in this Court. If we should give this construction to the statute, it would not only be expressly against its language, but would defeat its intended effect, by allowing parties to bring all actions to trial in this Court without the peril of costs which the statute has provided. It is our duty to aid the legislature by giving that construction which must have been intended by those who framed the law. The principle, on which the Court proceeded in the case of Weightman v. Hastings, 4 Mass. 244. is very similar to that on which we decide this point; although the questions have arisen upon different statutes. The Court observed that it was “ absurd to sav u that the parties may, by their agreement, evade a positive and “ very wholesome provision of a statute. It would be to make. “ law, and not to explain or administer it.”

We are unanimously of opinion that the plaintiffs are not entitled to a certificate as prayed for. There must be judgement for the plaintiffs for their costs to the amount of one quarter part of the sum they have recovered in damages, it being less than twenty dollars, pursuant to Stat. 1807 ch. 123. and the defendants must have a special judgment for their costs on the appeal.

Note. The Stat. 1817. ch. 135. is now repealed so far as it respects this State; but the Stat ate passed l?eb. 4. 1822, establishing a Court of Common Pleas, contains a prevision that when an appeal shall be made by the plaintiff {i in any personal action, (except actions of tresspass guare clfregit, and actions of replevin wherein the value of the property replevied shall by the “finding of the jury exceed one hundred dollars,) and he shall not recover *f more than one hundred dollars debt or damage, he shall not recover any ie costs after such appeal, hut the defendant shall recover his cost on such “ appeal against the plaintiff, and shall have a separate judgment therefor; “ and in case such appeal was made by the defendant, and the debt or dam> “ ages recovered in the Court of Common Pleas shall not be reduced, the “ plaintiff shall be entitled to recover double costs on the appeal.” But it does not provide for the case where the plaintiff, having reasonable cause to qppeal, recovers less than a hundred dollars*