#### * Barnabas Billings *versus*Charles L. Segar.

The statute of 1811, c. 33, § 4, giving to defendants costs in actions, in which the plaintiff appeals from the judgment of the Circuit Court of Common Pleas in a personal action, and fails to recover more than 100 dollars in this Court, extends to actions pending at the time the statute was enacted.

This was an action of the case against the defendant, for negligently keeping his fire on his own ground, by which the plaintiff’s trees, &c., were burnt; *ad damnum.*300 dollars.

The action was commenced May 6, 1811. There was a trial upon the general issue November, 1811, in the Circuit Court of Common Pleas, and a verdict returned for the defendant, upon ivhich judgment was rendered in that court January, 1812, from which the plaintiff appealed to this Court, and at April term, 1813, recovered a verdict for 50 dollars damages.

*Mills,*for the plaintiff.

By the statute of 1784, c. 42, <§> 8, a plaintiff recovering less than four pounds (by *Stat.*1807, c. 122, § 2, altered to 20 dollars) shall be entitled to one quarter only of the sum recovered as damages for his costs, in any action commenced originally at the Common Pleas. In all other cases, the party prevailing is entitled to full costs. (1) These statutes were in force at the commencement of this action, and under them the plaintiff claims full costs, notwithstanding the provision of the statute of 1811, c. 33, <§> 4, which passed after this suit was commenced.

*Ashmun,*for the defendant.

The statute last referred to by the plaintiff’s counsel expressly enacts that, where an appeal shall be made by *any plaintiff*from a judgment of the Circuit Court of Common Pleas, and he shall not recover more than 100 dollars at the Court appealed to, the plaintiff shall not recover any cost on such appeal, but the defendant shall be entitled to recover against the plaintiff his costs on such appeal, and shall have a separate execution therefor. This provision virtually repeals all former provisions on the subject. It cannot be explained away, nor admit of any construction variant from its plain import. The hardness of its operation in an individual case affords no argument against a plain and positive statute.

(1)

*Stat.*1784, c. 28, § 9.

* *Per Curiam.*

The object of the statute creating the Circuit Court of Common Pleas was to make its judgment final in all personal actions, where the real cause of complaint did not exceed 100 dollars. This case is expressly within *311the provision of the act. However great the hardship is upon the plaintiff, it is beyond the power of this Court to relieve him. It makes no difference, that the action was commenced before the passing of the act. It applied to all preexisting cases in the Courts of Common Pleas. °The plaintiff is entitled to judgment for his costs in the court below, and the defendant to a separate judgment for his costs arising since the appeal, *(a)*

(a)

*Towler*vs. *Chatterton,*6 *Bingh. 258.—Ansell*vs. *Ansell,*3 *Car. & P.*563.— *Kirkhaugh*vs. *Herbert, Wilk. on Lim. 145.—Anmer & Al.*vs. *Kattle,*5 *Bingh.*208. — 2 *Moore & P.*367. — *Holmes*vs. *Wright, Cm.*Lord *Tenterden, Wilk.*147.