last cited. But it is not by any means so clear that the defendant was bound to verify it in that manner. There is no provision in the amended code declaring that it shall take effect immediately. It follows, therefore, that it went into effect twenty days after its enactment, or on the first day of July, 1848.

This latter construction, I understand, was designed by one of the principal framers of the act; but it seems hardly consistent with the settled principles applicable to the construction of statutes. It seems to me that it will be more consistent with the general objects of the Legislature to consider the last section of the amended code as a portion of the old code, and applicable to such portions of the new code as existed prior to the 11th of April, 1849. To adopt the other view, and deem the amended code a substitute and put in the place of the former one, which is thereby obliterated, would be giving a retrospective effect to the law which must produce great confusion and work no little mischief. For notwithstanding the supposed intuition of modern law makers, it can hardly be conceived, I apprehend, that suitors can as yet foresee, and govern themselves by future acts of legislation. I am inclined, therefore, to construe the act as taking effect twenty days after its passage.

This conclusion is not, however, necessary to the decision of this case. For if the amended code is held to have effect from the first of July, 1848, it will not save the plaintiff's judgment. The amended code does not require the answer to be verified at all unless the complaint is duly verified. If, therefore, this act was in force in March, the complaint is not duly verified, and consequently the answer is good without any verification.

I shall therefore direct this judgment to be set aside and allow the plaintiff twenty days to reply to the answer. But as this is one of those mistakes naturally arising from an ill-digested and ever-varying code, he is not to be charged with costs of this motion.

SUPREME COURT.

ROBERT S. LIVINGSTON against PHILIP B. MILLER.

Costs of appeal ($45) to the general term, upon a bill of exceptions taken at the circuit, may be allowed to a plaintiff upon a final recovery, where the action comes within those mentioned in § 304 of the amended code. The last clause of sub. 6, of section 307 of the amended code must be rejected as repugnant to the other provisions, and the latter must prevail.

Dutchess Special Term, June, 1849.-This action was commenced under the code, and tried at the last December circuit in Columbia. The plaintiff obtained a verdict upon which a judgment was rendered. The defendant made a bill of exceptions and appealed to the general term. The cause was argued, and decided in favor of the plaintiff, at the general term held in Poughkeepsie in May last. In entering up final judgment, the clerk inserted $45 for the plaintiff's costs on the appeal.

The defendant's counsel now moves to strike out the costs on the appeal on the ground that the amended code does not give costs on an appeal from a judgment.

WM. ENO, for defendant.

JNO. THOMPSON, for plaintiff.

BARCULO, Justice.-I have no doubt of the power of this court, at a special term, to entertain a motion of this kind and review and correct the proceedings of the clerks in entering up judgments, and inserting the costs of the party entitled thereto. I shall therefore briefly examine the question whether costs are allowable on an appeal to the general term from a judgment entered upon the direction of a single justice.

By the original code (§ 262, sub. 5) costs in suits on an appeal were clearly given. But the amended code has added to that subdivision the words, "but this provision shall not apply to appeals in cases other than those mentioned in section 349." Section 349 does not include or relate to appeals from judgments entered upon the direction of a single justice. Standing, therefore, upon this subdivision alone, it would be impossible to avoid the conclusion that no costs were allowable upon such appeals. For, although such a result might be opposed to our views of justice and propriety, this is by no means sufficient to authorize us to disregard or alter a statute which speaks intelligibly. Nor do I think that we can safely say that the Legislature have made a mistake and inserted the word "not" instead of "only," as has been suggested. Such violence can only be done to a statute which is not intelligible without an alteration.

But there is another principle in the construction of statutes which must govern this case. Section 304 gives costs absolutely to a plaintiff upon a recovery in certain cases, of which this is one. That these costs will attach to the suit in whatever stage the judgment may be entered, whether on the direction of a single justice, or on appeal, is a proposition too plain to admit of discussion, in the absence of any other statutory provision. The only exception to this absolute right to costs is found in section 306, which makes costs on appeals discretionary in cases of

granting a new trial and when a judgment shall be affirmed in part and reversed in part.

Applied to the case before us, section 304 gives the plaintiff the right to his costs on the appeal. The only remaining difficulty is, to ascertain the amount of those costs. This is to be done by reference to the original code, which fixed the amount as charged in this bill. The last clause of sub. 6 of section 307 of the amended code being repugnant to the other provisions, must give way and the latter prevail; or, in other words, the amendment to sub. 5 of section 262 of the original code, which is contained in sub. 6 of section 307 of the amended code, must be rejected as repugnant to the preceding provisions, and the original reading must prevail.

The motion must therefore be denied, but without costs.

SUPREME COURT.

JOHN MCNAMARA agt. JOSEPH L. BITELEY.

Where title is set up in a Justice's Court by answer, under the code of 1849, and a new suit is instituted in the Supreme Court, for the same cause of action to which the defendant interposes the same answer as before the justice, a reply in this court on the part of the plaintiff is not necessary; and if put in, will be struck out on motion.

The case of Royce v. Brown, 3 Howard's Sp. T. Rep. 391, was under the code of 1848, which has been altered as to the code of 1849, as to pleadings in causes arising in Justices' Court.

Under the code of 1849, a reply to an answer in the Justice's Court is not necessary, case. The cause is at issue before the justice without it.

in any

In April last the plaintiff commenced an action before a justice of the peace of the county of Saratoga. On the joining of the issue, the plaintiff complained against the defendant as follows: "The plaintiff complains and says that on or about the second day of March, 1849, he purchased of one John Haley, for a valuable consideration, a dwelling-house or shanty, situate in the town of Moreau in the county of Saratoga, that the said defendant has since that time taken down and converted a part, or all of the said shanty, belonging to the plaintiff, to his own use, to the great damage and injury of the plaintiff. Whereupon the plaintiff demands judgment against the defendant for fifteen. dollars, with interest from the first day of April, 1849." Signed, &c.

The answer of the defendant was in writing, as follows: "Defendant answers the complaint in this cause, and says that the shanty referred to in complaint was not the property of the plaintiff. That said shanty was on the lands of the defendant and a part of the realty; that said shanty was unoccupied and was not leased, let, or in any way conveyed to said plaintiff; that John Haley never owned said shanty, or had a deed or conveyance of the same, or authority to sell the same to plaintiff or any one; that defendant never converted any stuff of plaintiff's to his use." Signed, &c.

This answer was delivered to the justice, who countersigned the same, and delivered it to the plaintiff. The defendant also gave the written undertaking required by § 56 of the Code of Procedure, and the suit was thereupon discontinued before the justice.

About the 10th of May the plaintiff commenced an action in this court for the same cause of action as before the justice, and deposited with the justice a summons and complaint, as required by the code, the said complaint being in substance the same as that before the justice. The defendant, on the 19th of May, gave an admission of service, and on the 30th May served a copy of his answer, being the same in substance as the one used before the justice. The plaintiff afterwards, and within the time required for that purpose, served a reply to the said answer, in substance as follows: "The above-named plaintiff replies to the answer of the above-named defendant, and says that the shanty referred to in the complaint was the property of the plaintiff, and that John Haley, of whom the plaintiff purchased the same, had a right to sell and convey the shanty to the plaintiff, he, the said Haley, being the lawful owner of the said shanty at the time that he conveyed the same to the plaintiff.

"And the plaintiff further replies, that if the said shanty was upon the lands of the defendant, it was put there by the consent of the defendant, with the express understanding that the owner of the said shanty might remove the same from the premises of the defendant, and that the same was not to become a part of the defendant's realty, and that the defendant was not to have any claim upon, or exercise any control over the said shanty.

"And the plaintiff alleges that the defendant has converted the said shanty as stated in the complaint; and that the said shanty, at the time of such conversion, was the property of the plaintiff." Signed, &c.

A motion was made by the plaintiff before WILLARD, J., at special term, to strike out said reply.

A. D. WAIT, for the plaintiff, contended that the reply was a depart

ure from the complaint. He insisted that after the answer was put in before the justice, the plaintiff should have amended the complaint, and then the justice would have had jurisdiction. He cited the People, &c. v. Rensselaer Common Pleas, 2 Wend. 647; Tuthill v. Clark, 11 Wend. 644; and 12 Wend. 207; and Brotherson v. Wright, 15 Wend. 237.

A. MEEKER, contra, cited Code of Procedure, § 56–63.

WILLARD, Justice.—The action before the justice, according to the former classification of actions, was trover for a shanty. It contained but one count, setting up, in the briefest form, the ownership of the plaintiff and the conversion by the defendant. Under the act for the recovery of debts to the value of twenty-five dollars, passed April 5, 1813, the plea of title could only be interposed before a justice in an action of trespass on land or other real estate, and if the title to land in other actions, came in question, the justice was ousted of jurisdiction without plea. (1 R. L. 387, 388, § 1-7.) The 9th section of the act of 1824, which extended the jurisdiction of justices of the peace to fifty dollars, allowed the plea of title to be interposed in any action wherein the title should come in question, and in other respects left the jurisdiction as before. The Revised Statutes contain the same provisions, with some slight modifications. (2 R. S. 236, 237, §§ 59-66,) and the same sections are re-enacted in the Code of Procedure, with some trifling changes in the phraseology. (Code of Procedure, §§ 55-63.) By the existing law, therefore, the defendant may, or may not, at his election at the joining of issue in any action before a justice, interpose, by way of defence, in his answer, matter showing that title to land will come in question. If the requisite steps be taken, as prescribed in the code, and the plaintiff, within the time required for that purpose, commences an action in this court for the same cause, and complains for the same cause of action only on which he relied before the justice, the answer of the defendant must be the same which he made before the justice. (Code, § 60.) If the judgment be for the plaintiff, in the Supreme Court, he shall recover costs. If it be for the defendant, he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff, unless the judge certify that the title to real property came in question on the trial. (§ 61.) If the plaintiff complains for a different cause of action, or the defendant sets up a different defence in his answer, from that used before the justice, the proper remedy of the adverse party is by motion to this court, to strike out the pleading, and require it to be conformed to that which was interposed in the court below. (See per SAVAGE, Ch. J.