
    Brown vs. Pollard.
    June, 7.
    Error to the Mason circuit; William P. Rofeb., Judge.
    
      Jurisdiction. Set-off] Costs.
    
    COVENAN'I.
    Case 29.
    If plaintiff in covenant recover less than $50 in circuit court, ■delend.ant entitled to costs unless demand reduced by ?et-off.
    
      Reid;, for plaintiff; Iiord; for defendant.
   Chief Justice Robertson,

delivered the'opinion of the court. It. seems to this court, there is no error in the judgment of the circuit court. There being no plea of sel-ojf or notice of set-off, and there, being no proof which would have been admissible under such a plea or notice; the defendant was entitled to a judgement for costs according to.the provisions of the act of 1827, increasing the jurisdiction of magistrates,. Because the plaintiff sued in covenant and recovered les.- tüan $'50.

Judgment affirmed.

Petition for a re-hearing.

Plaintiff's counsel filed the following petition for a rehearing.

The plaintiff in error respectfully prays the court to reconsider the case; find, begs leave to state as a reason why it ought to be reconsidered, that the writ of error is prosecuted, only because the court refused t.o allow him judgment for his costs, and for allowing the defendant judgment for his costs. The action is covenant, upon an indenture of apprenticeship, and it is plain from the writ and declaration that greater damages than fifty dollars would have been recovered, if the defendant had not put in “filed a plea or notice of set off,” to use the words of the statute passed on the 13th of February, 1828, page 228, of session acts of 1827; and, while the plaintiff admits that he would not have been entitled to costs without plea on the defendants part filed, he is at a loss to conjecture, why he should be prevented from judgment for costs, when the defendant filed a plea as the record shows he did, and as he respectfully conceives a notice of set-off too.

This honorable court has heretofore decided, that Under leave to give any special matter in evidence, matter of justification is proper in actions of trespass; and surely, in covenant under the same leave, any matter that could be legally pleaded in bar, may be given in evidence. And any evidence that the apprentice received his freedom dues or so much money instead of clothing, was admissible, and was actually given to the jury as the-court will see; for the whole substance of the testimony is set down.

This case, of itself, is not of that importance to require the reconsideration of the court, but the principle itself which the decision is to establish, induces the attorney for the plaintiff in error to solicit a re-hearing. How many cases of a like character there may be ready to present, he cannot tell; but that there are others, he is sure. And as he is not able to perceive the reason why the plaintiff cannot recover costs in any case where the defendant files a plea, and thereby reduces the sum below fifty dollars, and especially, where the defendant obtains written leave in the state of pleading to dp so, he prays for a re-hearing. H:- is astonished at the decision. And presumes that tiie law itself, the ■pleadings in the cases, or the subdance of the whole evidence as set down must have escaped the attention of the court. And is induced therefore, without seeing the opinion itself, to ask a re-consideration. Believing, upon his honor, that the opinion delivered, is wrong, and will not stand the scrutiny of the court itself when a proper construction is given to the sta-tatute.

Response..

Chief Justice Robertson

delivered the following, response,, of the court, overruling the petition for axe hearing.

If a plea of set off had been filed in form, the evidence would have been irrelevant. The facts which were proved, might have sustained a plea .of accord and satisfaction or possibly, the plea of covenants performed, but certainly did not tend to establish a set-o'ff. As the plaintiff must be presumed to have known that his demand had been reduced by the partial accord and satisfaction, he should be liable to costs for unnecessarily bringing his suit in the circuit court. He would not have been so liable. if his damages had been reduced by a set-off, because, as in such a case, he had accepted nothing in part satisfaction of his cause of action, he could not have known that the matter of set-off would have been relied on in mitigation, and, therefore, the act of assembly contains, in its exception, a plea or notice of set-off only.

Wherefore, as stated in the opinion, as there was no evidence which would have been admmissible under a plea of set-off, the plaintiff in. the action can-, not be benefitted by the exception in the statute.,

Petition overruled.  