
    Eleazer Roby versus Joshua Marsh.
    When a plaintiff appeals from a judgment of the court of common pleas in a personal action and recovers in this court less than $50, he is entitled to the costs of the court below, and the defendant to the coats of the appeal,
    Tins ivas an action on the case commenced at the court of common pleas, where a verdict was taken by consent of the parties for the defendant, and judgment rendered in his favor for $15,55 costs. From that judgment the plaintiff appealed, and at this term here the jury returned a verdict in favor of the plaintiff and assessed the damages at the sum of thirty dollars.
    
      Atherton, for the defendant,
    moved for leaA-e to enter judgment for the defendant for the cost of the appeal, amounting to $57,55 and also for his costs in the court below.
    J. U. Parker, for the plaintiff,
    contended that the defendant was only entitled to the costs of the appeal, and that the plaintiff was entitled to his costs in the court, be-Ioav amounting- to $17,25,
   By the court.

The statute of 1824, cap. 73, section 4, enacts “ that any party aggrieved at any judgraenl, not rendered on default, of the court of common pleas, in any real action or in any personal action, &e. may appeal therefrom, &c. and where any such appeal shall be made by any plaintiff and he shall not recover more than fifty dollars in the superior court of judicature, he shall not recover any costs on such appeal, but the defendant shall recover Ms costs and shall have a separate judgment therefor.” Were it not for this provision in the statute, the plaintiff would, by law, be entitled to recover his costs both in the court below and upon the appeal, and the only effect of this provision is, to take from the plaintiff the costs of the appeal and give the defendant costs.

The plaintiff must have judgment for his damages'and the costs of the court below, and the defendant judgment for his costs here.  