Roberts v. Carland

Wait, C. J. The only point assigned as error, for the reversal of the judgment, of the court below, is, “ that the said judgment awards the costs and expenses to the plaintiff, when it should have awarded them to the defendant.” Our statute provides, (chap. 8, sec. 2,) that costs shall be allowed, of course, to the plaintiff, “in an action for the recovery of money or damages, when the plaintiff shall recover fifty dollars or more.” Section four of the same act provides, “ that costs shall be allowed, of course, to the defendant, in the-actions mentioned in the second section, unless the plaintiff be entitled to costs therein.” The true construction to be given to these pro 333 visions of law is, we think, that, when, a plaintiff brings suit in the Circuit Court for the recovery of money or damages, and sets out his cause of action, and makes his proof,' if he fail to recover fifty dollars on account of his demand, he shall pay the costs of the suit; but, if he fail to recover this sum, and such failure results solely from a counter action or set-off, then that costs shall follow the judgment. This is the construction which has prevailed in most of our Circuit Courts, and is based, as we believe, upon principle. (Barnard v. Curtis, 8 Mass. 535; Gilman v. Burgess, 12 Mass. 206; Muling v. Rife, 3 J. J. Marsh. 587; Carrington v. Combs, ib. 308; Brown v. Pollard, 6 J. J. Marsh. 116; Odell v. Culbert, 9 Watts & Serg. 66; Cambridge Association v. Nichols, 3 Bernard, 248; Benton v. Martin, 4 Miss. 200; Levy v. Roberts, 1 McCord, 395; Burbank v. Willoughby, 5 New-Hamp. 111.) It appears from the answer of the defendant in the court below, that the plaintiff would have been entitled to a judgment of over one hundred dollars, except for the offset interposed. The plaintiff’s claim was reduced below fifty dollars by reason of the offset of the defendant. The plaintiff was entitled to costs. Judgment is affirmed.