
    * Thomas Wightman versus Thomas Hastings, Jun.
    The provision of the statute of 1803, c. 155, § 5, respecting costs, extends to actions brought up on demurrer, as well aé those in which there has been a verdict in the court below.
    This was an action of the case upon a promissory note. ' The plaintiff alleged his damage at 200 dollars. At the court below, the defendant pleaded non assumpsit, to which the plaintiff demurred, reserving liberty to waive his demurrer, and join the issue tendered upon the appeal. The defendant joined in demurrer, agreeing to the reservation. Upon the appeal, the plaintiff withdrew his demurrer, and joined the issue tendered below. Upon trial of this issue before Parker, J., at the last November term, the jury re turned a verdict for the plaintiff, and assessed his damages at 23 dollars 25 cents.
    Upon this verdict, B. Whitman claimed judgment for full costs for the plaintiff, notwithstanding the provisions of the statute of 1803, c. 155, <§> 5, which enacts that if any action upon simple contract, which shall be brought to this Court by the plaintiff’s appealing, and in which the plaintiff shall demand, but shall not, by the judgment of this Court, recover more than fifty dollars, the defendant shall recover his costs arising after the appeal. And Whitman suggested that the intention of the legislature was to prevent appeals from the Common Pleas in small causes after a trial, that trials might not be unnecessarily multiplied. These appeals from a judgment on demurrer stand on different ground, and amount to an agreement of the parties to give a jurisdiction to this Court.
    
      Ward, for the defendant,
    was stopped by the Court.
   Per Curiam,

(absente Parsons, C. J.) The words of the statute are too clear to leave a doubt. It is absurd to say that the parties may by their agreement evade a positive and very wholesome pro vision of a statute. The case is clearly within the provision, and to decide otherwise would be to make law, not to explain and administer it. The plaintiff is entitled to his costs before the appeal and the defendant is entitled to his costs since the appeal.  