
    Lewis vs. Spencer.
    Although the obligee of a bond, the penalty of which exceeds $50, may bring an action of covenant in a justice’s court, to enforce the condition, where the sums specified in the condition, or the damages claimed for breach thereof do not exceed $50, still he is not bound to do so ; but may bring an action of debt on the penalty in a court of record, and recover costs.
    The dictum in Bates v. Loomis, 5 Wendell, 133, that the payment of a part of the sum specified in the condition of such a bond would destroy the plaintiff’s right to costs, questioned.
    
    ERROR from the Madison common pleas. Spencer sued Lewis upon a bond in the penal sum of $60, conditioned that Lewis should pay Spencer such taxable costs as one Gardner should recover against one Denny, in a suit depending in the Madison common pleas, in case judgment for costs should be rendered in such suit in favor of Gardner. The plaintiff averred that in October, 1830, judgment for costs to the amount of $42,75 was rendered in favor of Gardner against Denny. Lewis suffered a default, and the damages of the plaintiff were assessed on a writ of inquiry at $45,74. The plaintiff, in October, 1831, took judgment for the penalty of his bond, and $29,44, costs of increase. The defendant sued out a writ of error.
    
      C. P. Kirkland, for plaintiff in error,
    insisted, that as the legislature had authorized a suit in that case like this to be brought in a justice’s court, 2 R. S. 225, § 3, it was manifestly their intention that defendants in such cases should not be subjected to the costs of courts of record, and that therefore the statute should receive such a construction as to make it compulsory on plaintiffs to bring their suits in such cases in justices’ courts, or if brought in courts of record, that they should not recover costs.
    
      J. A. Spencer, contra.
   By the Court,

Nelson, J.

It was decided in Boomer v. Laine, 10 Wendell, 525, that a justice had jurisdiction in an action of covenant upon the condition of a bond, the penalty of which exceeded fifty dollars, where the damages claimed did not exceed that sum, and that it was not limited to a bond» where the condition was for the payment of money only. The ground of this decision was, that by the 2 R. S. 225, § 2, jurisdiction is expressly given lo the justice, in all actions of covenant, in which the damages claimed do not exceed fifty dollars, and that at common law this action was well brought, upon the condition of the bond: of the correctness of this position I think there can be no doubt. 1 Chitty’s Pl. 110. 6 Vin. Abr. Cov. B. pl. 10. 1 W. Black. R. 395. 5 Wend. 191. 9 id. 235, 6.

The 2 R. S. 225, § 3, gives also in express terms an action of covenant on the condition of a bond for the payment of several sums of money, not exceeding fifty dollars. The same section provides also that a recovery for one instalment shall not bar a subsequent suit for another. There is nothing new in this section, if we are correct in the position that covenant will lie upon the condition of the bond at common law. Co. Litt. 292, b. 3 vol. 420, Thomas’ ed. id. 272, (n. w.) 1 Chitty, 113. Cro. Car. 241. 1 H. Black. 547. Since the statutes of 4 and 5 Ann, and 8 and 9 W., which we have adopted, 2 R. S. 353, § 12, 13; 378, § 1 and onward, the condition of the bond contains the actual liability or debt due ; and there is in it an implied, if not express covenant or agreement, to perform or pay as the case may be. The condition of the bond in question was for the payment of a sum of money less than $50, and therefore came directly within the 3d section, which gives the action of covenant upon the condition. Still, according to the above view, this makes no difference in this case. The plaintiff in the common pleas was entitled to full costs. It has long been settled that the judgment recovered is the test to determine the right to costs; and there is no doubt, in an action of debt, upon a bond with a penalty, conditioned to pay money, or perform covenants, the judgment must be for the penalty, except in the single case of a set-off. 13 Johns. R. 345. 2 Cowen, 412. 5 id. 424. 6 id. 57. 9 id. 652, and Bates v. Loomis, 5 Wendell, 133, There is a slight inaccuracy in the last case that should be corrected. Mr. Justice Marcy, after saying that the plaintiff would be entitled to costs, in a judgment by default, or on verdict, if the defendant had failed to show payment, adds, “ had they (the defendants) proved payment of ever so inconsiderable a sum, the plaintiff would not have been entitled to costs, but would have been liable to pay costs, for in such case the amount actually due is the test by which the right to costs is determined.” The learned judge no doubt had in his mind, at the time, the case of a set-off 2 R. S. 355, § 21, which provides that the plaintiff shall have judgment only for the balance dne, and which has been construed in the case of an action of debt upon a bond, to confine the judgment to that sum, excluding the penalty. See the above cases, and Van Antwerp v. R. and J. Ingersoll, 2 Caines’ R. 107.

There being nothing in the revised statutes preventing the action of debt upon a bond, or varying the form of a judgment, except in the single case of set-off, nor changing the settled rule that the judgment is the test by which the right to costs is determined, it seems necessarily to follow that the plaintiff was entitled to costs in this case. The re visors reported two sections providing, that in case of a bond, or other instrument, containing a penalty conditioned for the payment of money, or performance of covenants, in the one case the mo-ney actual]y due> and in the other the damages assessed, should be the test to determine the right to costs ; but they were not adopted by the legislature, and the law therefore remains as it was previous to the the revision.

Judgment affirmed.  