
    Daniel Stone versus Richard Kelly.
    In an action on simple contract, the ad damnum was more than fifty dollars; at the Common Pleas the plaintiff had judgment for thirty-nine dollars; the defendant appealed, entered his appeal, and afterwards suffered a default. It was held that the appeal lay, and that the plaintiff was entitled to double costs in this Court.
    Assumpsit for the labor of the plaintiff’s son. The declaration •contained two counts, viz., indebitatus assumpsit for forty dollars, .anda quantum meruit for the same services — ad damnum eighty dollars.
    At the Court of Common Pleas the action was tried on the general issue, and a verdict returned for the plaintiff for thirty-nine dollars. From the judgment on that verdict the defendant appealed to this Court, and, after entering his appeal, was defaulted.
    
      Lincoln, of counsel for the defendant,
    then moved in arrest of judgment, on the ground that no appeal lay in the case, the statute of 1803, c. 155, § 5, enacting that no appeal shall thereafter be allowed from the judgment of any Court of Common Pleas, in any action founded on simple contract, wherein it shall appear that the demand of the plaintiff does not exceed fifty dollars. And he contended that it was apparent in this case, that, although the plaintiff had laid his damages at eighty dollars, the real demand was but forty dollars, the two promises alleged in the declaration being evidently for the same cause of action. In the case of Campbell vs. Howard, 
       the chief justice, in delivering the opinion of the Court adverting to the provision of the statute referred to, says “ the appeal is a mere nullity,” and points out the remedy which the plaintiff has to obtain the benefit of his judgment below.
    
      * Bangs, for the plaintiff, relied on the provision contained in the latter part of the section of the statute cited for the defendant, which declares that where, in such a case as the present, the defendant shall appeal, the plaintiff shall be entitled to and recover double" costs after the making such appeal; and he moved for judgment accordingly.
    
      
       5 Mass. Rep. 376.
    
   Per Curiam.

The plaintiff’s demand was for more than fifty

dollars, and the appeal was not taken away by the statute cited. The plaintiff is entitled to judgment for his damages, and double costs in this Court.  