Van Antwerp v. Ingersoll — 1 Cole. & Cai. Cas. 370

Majority

p. 370

Daniel L. Van Antwerp v. R. and J. Ingersoll.

Headnote

THIS was a question of costs, by consent suf* íñitted to the court. The facts were, that in an action in the common pleas on a bill penal for 60 dollars, to secure two instalments, the defendant pleaded ñon ést jhctum, with notice of setting off a receipt, which was allowed as tó ciñe instalment, and left á balance under 25 dollars due to the plaintiff.

The point Was, whether the plaintiff should pay costg tó the defendant ?

The plaintiff must pay costs.^[1] This was a plea under the act authorising set-offs. 1 Rev. Laws, 347. The statute is positive and peremptory that judgment must be for the balance only. The

* 1 Rev.Laws, 530.

p. 371

penalty, therefore, is immaterial on this point, for the judgment is the test by which the costs are to be determined.