
    BOUDINOT against LEWIS.
    Affidavit that the debt exceeds $60, does not entitle plaintiff to costs in Supreme Court, on a judgment under $200.
    This was an action of debt, on a penalty contained in an indenture of lease. The plaintiff recovered filo, and now, by his counsel, moved the court to award costs, on the ground of his having made affidavit, under the 40th section of the act constituting courts for the trial of small causes, and regularly filed the same before the commencement of the suit, that he believed that he had sustained damage exceeding sixty dollars. That the act in such case, authorized him to institute a suit in any other court, (which must certainly include this court as well as the Common Pleas) and directed, that in case he recovered any sum whatever, the defendant should be liable to pay costs.
   Kirkpatrick, C. J., and Rossell, J.

Were of opinion, that the provision contained in that section, did not apply to suits instituted in this court; that the words at the close of the section, “ if he recover any sum whatever, the defendant shall be liable to pay costs,” should be construed that the defendant in such case, should be liable to pay costs, as in other [t] cases ; or, as if the prohibitory part of the section had not been passed, but was not intended to alter the law respecting costs in this court.

Pennington, J.

Inclined to a contrary opinion, from the genera], positive, and unqualified language of the act.

Costs refused.  