
    Winslow, plaintiff in error v. Prince, original plaintiff
    
    The provision oi.Stat. 1821, ch. 164, sec. 46, exempting the clerk of a militia company from the payment of costs to the defendant in any suit where the captain has indorsed on the writ his approval of the prosecution, extends to the costs in all subsequent stages of the proceedings, as well ag-io those accruing in the Justice’s' court. .
    This- .was a suit brought before a justice of the peace, by Prince, as the clerk of a militia company, to recover a fine for neglect of ap-’ pearance at training. The defence was that Winslow was permanently unable to do military duty, and so not liable to he enrolled. But the-justice overruled this defence, because .it was not offered io 
      tbe captain, as an excuse, within eight days. Hereupon the defendant brought a writ of error, and the judgment was reversed without argument, and a new trial ordered at the bar of this court; which was had at the last November term, and a verdict was returned for Winslow, the plaintiff in error.
    It did not appear on the record, nor on the copies sent up by the magistrate, that the captain had ever indorsed on the writ his approval of the suit, so as to exempt the clerk from the payment of costs, pursuant to the statute; whereupon the plaintiff in error claimed his costs as the party prevailing. But upon a suggestion of diminution in the record, the original writ was brought up, with the captain’s approval indorsed, accompanied with his affidavit, and those of the magistrate and the constable, that the indorsement was made before the writ was served$ and the record was amended accordingly.
    The plaintiff in error still claimed his costs, contending that the exemption in the statute applied only to suits before justices of the peace, and while they were there pending. The justice’s court being the forum alluded to in all cases where the clerk was concerned, the clause respecting' costs must be taken with reference to such suits, especially as the right of appeal was expressly taken away.
    
      Greenleaf, for the plaintiff in error.
    
      Fessenden and DeMois, for the defendant in error.
   But the Court

did not sustain the claim, observing that the provision in the'statute was general and unqualified, extending to all the costs in every suit where the condition was complied with; and that as the action tried at the bar of this court, after the reversal of the former judgment, wras the samé which had been tried before the justice, the exemption attached itself to it as well in one stage as in another.  