
    Abraham Cornogg against Isaac Abraham and Jane his wife, Daniel Cornogg and George George, executors of Daniel Cornogg.
    Referees in a suit removed by the plaintiff, may find 12I. due to him, and full costs.
    The administration account of the defendants had been referred at Nisi Prius at West Chester, September assizes 1791, to three persons, to report thereon, and also the balance, if any, due to the plaintiff. The auditors reported to the last term the sum of twelve pounds to be due to the plaintiff, but said nothing therein of the costs. A certificate of two of the auditors was then produced, fixing the costs on the defendant, and a certificate of the remaining auditor, declaring his sense that the plaintiff should pay the costs. The point of costs, on motion, was then re-committed to the same referees, and two of them now report that the defendants should pay the costs.
    The cause was removed by the plaintiff from the Common Pleas of Chester county by certiorari.
    
    
      Exception was taken by the defendants, that the act of assembly of 20th May 1767, § 3, pa. 338, 339, had declared by positive words, .that where a plaintiff removed a cansé, the debt or damages whereof, which should be found due by default, confession, verdict or report of referees, should not amount to 50I. such plaintiff shall not recover any costs of suit, and therefore the act was obligatory as well on the court, as on jurors and referees, who could make no order against the express terms of the law.
    Mr. Sergeant pro quer. Mr. WilcocksySrc def.
    
   * Sed non allocatur.

For though the act is binding pggg L on the court, it is not binding on jurors or referees, might, they saw cause, give a larger sum in damages. So in slander, though the court are bound by the stat. of 21 Jac. 1, c. 16, and cannot increase the costs where the damages are under 40s. yet it was resolved by all the justices of B. R. and C. B., that the jury are not bound by that statute, and therefore they may give iol. costs where they give but iod. damages. 1 Salk. 207. Vide Cooke’s Cas. of Pract. in C. B. 45. Sayer’s Costs, 21.

And the same point was determined in this court in January term 1792, where trespass and false imprisonment was brought, and the action removed by the plaintiff, the jury on trial gave 37I. 10s. damages and full costs, and the judgment was entered accordingly; and on a question being afterwards made, the court adhered to their former opinion.

Judgment for the plaintiff for 12I. and costs.  