
    JONES’ Executors vs. MURPHY.
    In an amicable action, reference and report for plaintiff for a sum not exceeding fifty dollars, the plaintiff recovers costs, notwithstanding sec. 37 of Digest 351.
    But where a suit is brought adversarily and afterwards referred by consent, the plaintiff will not be entitled to costs, unless the report be for a sum exceeding fifty dollars.
    An amicable action was entered on the 18th of February, 1836, in vacation; and by agreement of parties the matters in controversy in the cause were referred to three referees chosen by the parties. At the May term, 1840, the referees returned an award in favor of plaintiff for the sum of fifty dollars; and judgment was rendered on the award.
    
      Mr. Hamilton, for defendants,
    now asked the court if this judgment carried the costs; the sum found due being within the jurisdiction of a justice of the peace; and he referred to section 37 of the act providing for the recovery of small debts. (Digest 351.)
    
      Mr. Gilpin said that this act referred to adversary suits, as was apparent from the exception where the plaintiff makes oath as provided by that act before issuing the writ; and he said it had been heretofore held, that this section did not apply to amicable actions docketted for the mere purpose of reference, where the whole matter, including the costs, is the subject of the reference.
    
      Gilpin, for plaintiffs.
    
      Hamilton, for defendants.
   Chief Justice Booth

said, such had been the decision in the late Supreme Court, and it was held accordingly.  