#### John Plimpton *versus*Obed Baker.

The certificate of a judge of this Court, that a party had reasonable cause for appealing from the Court of Common Pleas, should be granted before the rendition of judgment in this Court.

Where the plaintiff appealed and recovered judgment for less than $ 100 and for his costs, and afterwards, before a writ of error was sued out, obtained such a certificate, the judgment was nevertheless held to be erroneous.

This was a writ of error sued out by Plimpton, the original defendant, against Baker, the original plaintiff.

In the assignment of errors it was stated, that the suit was a personal action, in which the Court of Common Pleas rendered a judgment in favor of Plimpton, upon a verdict, and that Baker appealed to this Court, and upon such appeal recovered less than one hundred dollars damage, to wit, one dollar; whereupon judgment was rendered, without any certificate from the judge that there was reasonable cause for the appeal, for Baker, for the damage above mentioned and his costs of suit as well after as before the appeal; whereas, the judgment should have been rendered for him for the damage and his costs of suit before the appeal, and for Plimpton for his costs of suit upon the appeal.

It was further alleged in the assignment of errors, that the judgment should have been rendered for Plimpton for his costs of suit upon the appeal, and that no costs should have been allowed to Baker thereupon.

Baker pleaded, that there was reasonable cause for the ap peal, and that prior to the suing out of the writ of error, the judge did certify in due form that there was reasonable cause for such appeal.

Plimpton replied, that the certificate was granted a long time after final judgment was rendered and recorded, and without the knowledge of Plimpton.

To this there was a general demurrer.

The *St.*1820, c. 79, § 4, provides, that where the appeal from the Common Pleas “ shall be made by any plaintiff and he shall not recover more than one hundred dollars at the court appealed to, the plaintiff shall not recover any costs at the *72court appealed to, on such appeal: but th¿ defendant shall be entitled to recover his costs against the plaintiff on such appeal, —provided, that if the Supreme Judicial Court shall -certify that there was reasonable cause for such appeal made by the plaintiff, the plaintiff may thereupon recover his costs of the appeal.”

*Richardson*supported the demurrer.

To prevent litigation, the Court will sustain their own judgment whenever they can. *2*Wms’s Saund. 101 *q,*101 *s,*101t, *in notis; Shipman*v. *Lethieullier, 2*Ld. Raym. 1476 ; *Berkley v. Howard,*2 Str. 907. And they will examine into the circumstances of the case. *Ex parte*Weston, 11 Mass. R. 417. Here the object was to determine the question of a right of way, and the plaintiff expected to recover only nominal damages.

The record of the Court being under their own control, the judge had a right to certify what was necessary to sustain the judgment; and this without a bearing of the parties. If by inadvertence of counsel or of the judge, the certificate was not made before the judgment, he might certify afterwards. 1 Salk. 51 ; *Dickinson*v. Plaisted, 7 T. R. 474 ; *Dewitt*v. Post, 11 Johns. R. 460 ; *Smith*v. *Skipwith,*Cro. Jac. 277 ; *Tully*v. Sparkes, 2 Str. 867, and 2 Ld. Raym. 1570.

If the plaintiff recovers nothing in the court below, but does recover some damages in this Court, there was reasonable ground to appeal. The record as amended shows a certificate to that effect, and error cannot be assigned to contradict the record.

*Leland*and *Gardner,*contra,

insisted that the certificate should have been made before the rendition of judgment. 2 Sellon’s Pr. 431, 433, 436 ; Tidd’s Pr. 871 ; *Ford*v. *Parr,*2 Wils. 21 ; *Toioers*v. *Vielie,*1 Johns. Cas. 221 ; *Heaton*v. *Ferris,*1 Johns. R. 146.

The certificate should not have been granted without notice to the adverse party. The reasonableness of the appeal may depend upon what took place in the court below, and which must be made known to the judge who certifies, by the production of evidence. Tidd’s Pr. 813, 814, 843 ; *Godfrey*v *Godfrey,*1 Pick. 236 ; *Chace*v. *Tucker,*2 Pick. 27.

There is no amendment of the record here. The cases of *73amendment after judgment relate to circumstantial errors ; this error is one of substance. 6 Dane’s Abr. 290 ; *Hutchinson*v. Crossen, 10 Mass. R. 252.

*Per Curiam.*

The provision of the statute, that where the judge shall certify that the plaintiff had reasonable ground to appeal, the plaintiff shall recover his costs, does not mean that in all such cases he shall recover full costs. If the damages recovered are less than twenty dollars, he is entitled to costs u. the amount of one quarter part of the damages. Here he has recovered one dollar as damages and full costs. Therefore if the certificate had been given in due time, the judgment would still be erroneous.

But we think the certificate was made too late. The statute clearly implies that it shall be given before the judgment is entered up. The parties are then both in court, when there may be a motion for a certificate and a hearing upon the motion, without any formal notice. The judge here gave the certificate without considering the question whether it would avail the plaintiff, and for the reason above stated we are all of opinion that it can have no effect. The only ground, if any, on which the judgment can be supported, is, that the suit was in the nature of a real action, but we have not before us the facts required to present this question.1

1

 See Revised Stat c. 121, § 10 ; *Briggs*v. *Murdock,*13 Pick. 321, *Barney*v. *Keith,*6 Wendell, 555.