L. & C. Godfry against Vancott

L. & C. Godfry against Vancott. Id an action of debt on a boodj for tbe penal sum of 500 dollars, conditioned to abide the award of arbitrators, judgment In form being entered up for the plaintiff for the penalty, though the jury-assessed the damages to thirteen dollars only, the plaintiff was held entitled to recover his futt, tostf, IN ERROR., to the court of common pleas of the county of 'Sullivan. The plaintiffs in error brought an action of debt in the court below against the defendant in error, on an arbitration bond for the penal sum of 500 dollars, conditioned to abide by, and perform, the award of the arbitrators named therein ; and assigned two several-breaches.’ The defendant pleaded non est factum. At the trial, the jury found a verdict on the issue, for the plaintiff, and assessed damages at six cents; and, on the first breach assigned, the jury assessed the damages at 12 dollars and 94 cents, and, on the second breach, at six cents; the damages, in all, amounting to 13 dollars and 6 cents. Judgment was entered up in form for the plaintiff, for the penalty of the bond. The defendant objected, that the damages recovered being less than 25 dollars, the plaintiff could not recover costs, but was bound to pay costs to the- defendant; and the plaintiffs insisted, that having recovered a judgment for 500 dollars of debt, they were entitled to full costs. But the court below decided that the plaintiffs were not entitled to costs, but must pay the defendant his costs, which should be set off against, and deducted from, the amount of the damages assessed by the jury. To this opinion of the court, the plaintiffs tendered a bill of exceptions, on which the writ of error was brought. The cause, on the return of the writ of error and bill of ex* ceptions, was submitted to the court without argument. [MAJORITY — Per Curiam.] Per Curiam. This case comes before the court on a writ of error to the common pleas of Sullivan county; and the only-question presented for decision is, whether the plaintiff below was entitled to recover his costs, or was bound to pay costs to the defendant. The action was debt on the penalty of 500 dollars, in a bond, with a condition to abide by and perform the award of arbitrators. The damages assessed by the jury, under the breaches assigned, were under 25 dollars: the judgment, however, was entered for the penalty, and the court below decided that the plaintiffs were not entitled to recover costs of the defendant. This was incorrect. The plaintiffs' Were entitled teJ .recpver cpsts; the judgmeht being upon the penalty.: The da'a mages assessed', together .with the costs, regulates the amount to be recovered on the execution; but the judgment; being in form,' Upon the penalty,, the. costs follow of course. The judgment is'the test’by ’Which;,the right .to: costs'is determined’this has "been the long and well-settled imle of construction given, to-the’ . statute relative to costs."- ,(2 Johns. Cas. 206. 2 Caines, 10 Johns. Rep. 219.) The judgment of .the court below ¿must,.' >‘accordingly,-be reversed. ' ■' . V" • . v--. judgment réversédí