Van Antwerp against R. & J. Ingersoll

Van Antwerp against R. & J. Ingersoll. If on a plea- of set-off in the common pleas the sum for which judgment U rendered be under 25 dollars, the plaintiff must pay costs to the defendant. In actions in the common pleas, on demands not exceeding 200 dollars, to he certified on the record by the judge if the plaintiff recover under 25 dollars, he pays costs. This was a question of costs by consent submitted to tbe court. Tbe facts were, that in an action in tbe common pleas, on a bill penal for 60 dollars, to secure two instal-ments, tbe defendant pleaded non est factum, with notice of setting off a receipt, wbicb was allowed as to one instalment, and left a balance under 25 dollars due to tbe plaintiff. Tbe point was, wbetber the plaintiff should pay costs to tbe defendant. [MAJORITY — Per Gu/dam.] Per Gu/dam. Tbe plaintiff must pay costs. 1 Rev. Laws, 530. This was a plea under tbe act authorizing set-offs. 1 Rev. Laws, 347.' Tbe statute is positive and peremptory that judgment must be for the balance only. The penalty, therefore, is immaterial on tbis point, for tbe judgment is tbe test by wbicb tbe costs are to be determined.