Thompson v. Tompson , 31 Me. 130 ( 1850 )

Howard, J.

This is an action of assumpsit, originally brought in the District Court. The defendant filed an account in set-off, and, at the trial, testimony was offered to support the respective claims of the parties. The plaintiff obtained a verdict for $6,53, and the Judge of that court decided that he was not entitled to recover more than one quarter of that amount ha costs, and directed the taxation to be made accordingly. To this direction, the plaintiff excepted.

The direction of the District Court was clearly correct, under the provisions of the Rev. Stat. chap. 151, § 13, unless the case falls within the provisions of chap. 115, § 99. That section is as follows : — “ In actions on contract, in which an account is filed in set-off, although the damages found for the plaintiffs shall not exceed twenty dollars, he shall be entitled to full costs; provided, the jury shall certify, in their verdict, that the damages were reduced, as low as that sum, by means of the amount allowed by them, on account of said set-ofí', and as due upon it.”

The court could not know, except by their certificate, that the damages were thus reduced by the jury, by means of the account in set-off. They did not so certify, and, therefore, the plaintiff did not present a case within the purview of the statute, allowing the taxation of full costs.

Exceptions overruled, and judgment to be entered on the verdict, with costs for the plaintiff, equal to one quarter of the amount of the damages.