
    Polleys vs. Smith.
    The plaintiff recovered judgment in the Court of Common Tloas for nearly $200. The defendant appealed, and in this Court the plaintiff recovered $37 only. Held that this case, in regard to the question of costs, was not embraced in the special provisions of the act of March 4, 1829 ; but that the plaintiff was entitled to his costs after the appeal, under the general provisions of the act of 1821, ch. 59, he being il the, prevailing party ”
    
    This case is fully stated in the opinion of the Court, which was delivered by
   Mellen C. J.

is an action of assumpsit. In the Court of Common Pleas the plaintiff recovered judgment for nearly $>200. The defendant appealed: and on trial in this Court the plaintiff recovered judgment for about $>37. Each party moves for costs since the appeal. By the 4th section of the act of February 4th, 1822, ch. 193, it is, among other things, provided that in case of appeal in all personal actions, except trespass quart clausum fregit and actions of replevin, wherein the value of the property replevied shall by the finding of the jury exceed one hundred dollars, if made “ by the plaintiff, and he shall not recover more than one hundred dollars debt or “ damage, he shall not recover any costs after such appeal; but “ the defendant shall recover his costs, 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 damages recovered in the Court of Common Pleas shall not he reduced, the plaintiff shall be entitled to recover “ double costs on the appeal.” This provision being found unsatisfactory in its operation, was repealed by the act of March 8th, 1826, ch. 347, the 4th section of which provides, that in case of appeal, in any action, originally commenced in the Court of Common Pleas, if made by the plaintiff, and if on the final judgment “ he shall not recover greater debt or damage than were rendered for him in the Court of Common Pleas, the defendant shall recover against him such costs as may arise “ after the appeal, and shall have his execution for the same ac- cordingly. And if the defendant shall appeal, and the debt “ or damage recovered by the plaintiff in the Court of Common “ Pleas shall he reduced, he shall recover his costs, which costs “ may arise after the appeal.” The above provision was soon found to be unsatisfactory and the same was repealed by the act of March 4th, 1829, the first section of which enacts “ that in any personal action, except actions of trespass guare clau- “ sum fregit and replevin, when the appeal shall be made by “ the plaintiff, and he shall not recover more than one hundred “ dollars as damages, he shall not recover any costs after such “ appeal, but the defendant shall recover his costs after such appeal, and shall have a separate judgment therefor. And in “ case such appeal be made by the defendant, and the damages “ recovered in the Court of Common Pleas shall not he reduced the plaintiff shall recover his costs after such appeal, and an additional sum equal to twenty-five per cent, on the amount “ of such cost.” Thus it is perceived that the 4th section of the act of 1826, which is now repealed, allowed costs to the defendant, after the appeal, when the damages were reduced; yet such repeal and the omission of such a provision in the act of 1829, shows plainly that it was intended that in such case the defendant should not recover costs. But it is contended that under the general provision in the act of 1821, that the prevailing party shall recover costs, the defendant has a right to costs since the appeal; that as to the cause since the appeal, he is the prevailing party-; This construction cannot be admitted. As well might a defendant who, in the Court of Common Pleas, has reduced the amount recovered before a Justice of the Peace, claim the benefit of the general provision, and the allowance of costs, after the appeal, as the prevailing party, yet such a taxation was never known. We are satisfied that the defendant, therefore, in the present case, cannot have judgment for his costs since the appeal. The remaining inquiry is, whether the plaintiff is entitled to his costs since the appeal. On this point the last act is silent. It provides, in terms, only for the case where the damages are not reduced on trial in this Court. In the present case they are reduced, and, of course, the plaintiff cannot have any claim for the penalty of twenty-five per cent• beforementioned. Can he tax his simple costs since the appeal ? Upon general principles he is the prevailing party, although his damages have been lessened on the appeal, and as no special provision has been enacted, controlling the general principle, in such a case as the present, we are not at liberty to deprive the plaintiff of the benefit of it. The special provisions in the acts of Massachusetts, were repealed by our statute of 1822 before mentioned; and none exist in this State, but those we have quoted. The general provision therefore is in full force, and the plaintiff, as the prevailing party, is entitled to his costs, as well since as before the appeal.

Judgment accordingly.  