
    William King vs. Patrick Marrow.
    Norfolk.
    January 21. —24, 1881.
    Colt, J., absent.
    An action was commenced before a trial justice, who gave judgment for the plaintiff, from which the defendant appealed to the Superior Court, and there pleaded a tender, for the amount of which the court gave judgment for the plaintiff, to whom the defendant paid that sum. Costs were taxed by each party, and disallowed; and from that order the defendant appealed. Held, that the order should be affirmed.
    Contract upon an account annexed to recover a dollar and a half for repairing a carriage shaft, and forty cents for shoeing a horse. The action was commenced, and a general denial orally pleaded, before a trial justice, who gave judgment for the plaintiff for ninety cents damages, and $38.66 costs.
    The defendant appealed to the Superior Court, and there filed this answer: “ Now comes the defendant, and denies each and every allegation in the plaintiff’s declaration.
    
      “ How comes the defendant, and brings into court forty cents, the amount claimed for shoeing the defendant’s horse, and says that heretofore, and before action brought, he tendered to the plaintiff said forty cents, and at the trial in the court a quo he also tendered said forty cents to the plaintiff.”
    The court gave judgment for the plaintiff for forty cents, being the amount of the tender; and the defendant paid that sum to the plaintiff’s attorney. Costs were taxed by the'plaintiff in the sum of $181.33, and by the defendant in the sum of $53.17, and both taxations were disallowed by the clerk. From the decision of the clerk the defendant appealed to the court, which ordered his appeal to be dismissed; and from that order he appealed to this court.
    
      F. F. Dewing, for the defendant,
    cited Gen. Sts. c. 156, § 1; c. 129, § 87; c. 130, § 23; 1 Sellon’s Pract. 319; Hill v. Williams, Barnes, 357; Storer v. McGaw, 11 Allen, 527; Brickett v. Wallace, 98 Mass. 528.
    
      B. D. Washburn, for the plaintiff, submitted the case without argument.
   By the Court.

If there was any error, prejudicial to the defendant, in the proceedings below, it was in rendering judgment for the plaintiff for the sum of forty cents, But the defendant did not appeal from or allege exceptions to that judgment. The only appeal before us is from the order of the Superior Court affirming the decision of the clerk disallowing costs to the defendant. The judgment in the action standing for the plaintiff, the defendant is not entitled to costs.

Order disallowing costs affirmed.  