(absente Parsons, C. J.) The words of the statute are too clear to leave a doubt. It is absurd to say that the parties may by their agreement evade a positive and very wholesome pro vision of a statute. The case is clearly within the provision, and to decide otherwise would be to make law, not to explain and administer it. The plaintiff is entitled to his costs before the appeal and the defendant is entitled to his costs since the appeal.