
    Pate v. Roberts.
    
      Costs.—Excessive Damages.—Remittitur.—Supreme Court.—Practice.—Where, on appeal to the Supreme Court, it appears from the evidence that a portion of the damages assessed against the appellant is excessive, and the remainder just, upon a remittitur by the appellee of such excessive portion, the remainder, with the costs accrued before the appeal, will be affirmed, but the costs of the appeal will be adjudged against the appellee.
    From the Dearborn Circuit Court.
    _ZV. S. Grivan and W. Ii. Matthews, for appellant.
    
      O. B. Liddell, for appellee.
   Worden, C. J.

This was an action by the appellee, against the appellant, on an account. Trial by the court, resulting in a finding and judgment for the plaintiff, for one hundred and one dollars.

The defendant moved for a new trial, on the ground, amongst other things, that the damages assessed were excessive.

We are of opinion, upon an examination of the evidence, that the amount of the recovery was too large, and not supported by the evidence.

But the administrator of the appellee, who has departed this life since the submission of the cause, has filed a remittitur of all of said sum so recovered, except sixty dollars, and we are of opinion, from the evidence, that the judgment below for the residue, viz., sixty dollars and costs, ought to be affirmed. But this will have to be done at the costs of the appellee, accruing in this court.

The judgment below, for sixty dollars and.,costs, is affirmed, at the costs, in this court, of the appellee.  