
    Abraham Chace versus Barzillai Tucker.
    Where a plaintiff, not being prepared for trial and not moving for a continuance, suffers a verdict to be given against him in the Court of Common Pleas without offering any evidence in support of the action, and upon an appeal by him to this Court, does not recover more than one hundred dollars, the defendant is entitled, under St. 1820, c. 79, § 4, to recover his costs on the appeal.
    Assumpsit. The ad damnum was laid at more than one hundred dollars. In the Court of Common Pleas, the plaintiff not being prepared fct trial, and his counsel not thinking that there was any ground for moving for a continuance, the cause went to the jury without any evidence being offered. A verdict was of course found for the defendant, and the plaintiff thereupon appealed to this Court; and at the last term, at Taunton, he obtained a verdict for about 29 dollars. Each party now claimed his costs on the appeal, by virtue of St. 1820, c. 79, § 4.'
    
    
      Morton and Merrick, for the plaintiff,
    cited Godfrey v. Godfrey, 1 Pick. 236.
    
      W. Baylies and L. Williams, for the defendant,
    cited Boston v. York, 1 Greenl. 406 ; Turner v. Carsley, ibid. 15.
   Parker C. J.,

giving the opinion of the Court, said that where the plaintiff has recovered nothing in the court below and has recovered something upon his appeal, it had been considered that he had reasonable cause for bis appeal; but all the cases have been where there was a trial in the inferior court. It will not do to apply this rule to a case in which the plaintiff offers no evidence below ; and here none was offered, because the plaintiff had not his evidence ready. If this was so without his fault, he might have moved for a continuance, and if he had been compelled to go to trial, he might then have appealed. But here the right of appeal was used as a mere matter of convenience. The case comes clearly within the provision of the statute, that where the plaintiff, on an appeal made by him without reasonable cause, shall not recover more than one hundred dollars, he shall not be entitled to any costs on his appeal, but the defendant shall recover his costs against the plaintiff on such appeal. 
      
       See Howe’s Practice, 315, 316; Briggs v. Murdock, 13 Pick. 305
     