
    
      Daniel L. Van Antwerp v. R. and J. Ingersoll.
    
    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 ?
   Per Curiam.

The plaintiff must pay costs. 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 penalty, therefore, is immaterial on this point, for the judgment is the test by which the costs are to be determined. 
      
      
         1 Rev.Laws, 530.
      
     