
    John Barnard, Administrator of John Truman, versus Seth Curtis.
    Where, by reason of an account hied by way of set-ofij the plaintiff’s damages are reduced below twenty dollars, he is still entitled to full costs ; — aliter, whore the items in the account are proved to have been delivered and received in part payment of the plaintiff’s demand in the action.
    Assumpsit on a promissory note made by Curtis to Truman, by whom the action was commenced, and upon whose death his ad ministrator was admitted to prosecute it. -
    The defendant filed an account for sundry services performed, and for a puncheon of rum. On trial of the action on the general issue, all the charges in the account were * barred by the statute of limitations; but there was evidence to the jury that the rum had been delivered and received as part payment of the note; and deducting the value of it from the amount due by the note, they returned their verdict for sixteen dollars, the balance found due.
    
      Smith, for the plaintiff, moved for costs.
    
      Davis, \Solicitor General,] for the defendant,
    insisted that the plaintiff was entitled, by statute 1807, c. 122, to no more than one quarter part of the damage recovered, as his costs.
   By the Court.

This case must be distinguished from an account filed and allowed by way of set-off. In such case we have allowed full costs, though the balance found by the jury has been less than twenty dollars. But here was evidence of a partial payment, by which the plaintiff’s actual demand is proved to be under twenty dollars. It is within the statute, and costs can be taxed but to the amount of one fourth part of the damage found by the verdict.  