
    The People on the relation of D. Marsh vs. Genesee C. P.
    It is no cause for quashing an appeal that a justice takes less cost than he is entitled to receive, when a party is willing and offers to pay all that can be required of him, and in fact pays all that is demanded.
    Motion for a mandamus. A judgment was rendered against the relator in a justice’s court for $1606 damages and $4,88 costs. The relator executed an appeal bond in the penalty of $42,08, reciting the damages and costs as above stated, and delivered the same to the justice, and paid him all the costs he demanded, he refusing, however, to take TVo, the charge for execution included in the bill of $4,88 costs. In making his return to the common pleas the justice stated the costs at only 4,69. The relator ruled him to amend his return, and he then made an additional return» adding the so as to make the costs amount to $4,88. When the cause came on to be heard in the common pleas it was objected that the relator, in omitting to pay the for the execution had not complied with the statute in paying all the costs of the court below. The common pleas sustained the objection, and quashed the appeal. A mandamus was now asked, directing the common pleas to vacate the rule quashing the appeal.
    
      Chandler and Allen for relator.
   By the Court,

Sutherland, J.

The appeal ought not to have been quashed; the relator did all that he could do, to comply with the requirements of the statute ; he paid all that was demanded of him. It is no cause for quashing an appeal that a justice takes less costs than he is entitled to receive, when a party is willing, and offers to pay all that can be required of him, and in fact pays all that is demanded. This case is very different from those reported in 6 Cowen, 61, and 1 Wendell, 282. In the case in Cowen there was no payment of the costs, the justice being simply directed to charge the costs to the party; and in the other the party refused to pay part of the costs, on a claim of being himself entitled to a portion of them. Let an alternative mandamus issue.  