Stewart v. Mitchell's Administrators

Per Curiam. The only question in this case is, whether the administrators of Jlndrew Mitchell, who were plaintiffs below, were entitled to recover costs. Judgment was entered on a bond with warrant of attorney, in the penalty of five hundred dollars; but the plaintiff recovered less than one hundred dollars. By the act of the 20th of March, 1S10, section 26, 5 Sm. L., 172, if any person shall commence a suit, for any debt made cognizable by a justice of the peace, iu any other manner than is di [288] rected by the said act, and shall obtain a verdict and judgment, which, without costs, shall not amount to more than 'one hundred dollars, not having made an oath or affirmation before obtaining the writ, and filed the same in the prothonotary’s office, that he believes the debt exceeds one hundred dollars, he shall not recover any costs. No affidavit was filed in the present case, and we think it is not to be distinguished, in principle, from Cooper v. Coates, which was decided on the ten pound act. 1 Dall. 308. It is the opinion of the court, therefore, that the judgment should be reversed, as to the costs, and affirmed for the residue. Judgment reversed as to costs, and affirmed as to the residue.