
    Hutts v. Williams.
    Sveeeme Cotjkt.—Appeal.—Cause Commenced Before Justice.—Set-Off.— Where, in an action commenced in the court of a justice of the. peace, and appealed to the circuit court, to recover for a sum less than ten dollars, the defendant files a set-off for an amount exceeding that sum, an appeal lies to the Supreme Court from a judgment rendered therein.
    
      Same.—Costs.—Presumption.—Witness.—Where the fees of witnesses subpcenaed, but not used, by the successful party are taxed to the losing party as costs, on appeal to the Supreme Court, it will be presumed, where the evidence is not in the record, that they were rightly taxed.
    From the Fountain Circuit Court.
    
      J. Mistine and G. Me Williams, for appellant.
    
      H. 3. Stilwell and T. L. Stilwell, for appellee.
   Biddle, J.

Williams sued Hutts, before a justice of the peace, for two hundred pounds of flour, sold and delivered to him;—price, eight dollars. Hutts filed a set-off for two bushels of corn, and a sack, and twenty-five bushels of wheat;—amount, thirty-two dollars and seventy-five cents. Williams recovered judgment before the justice for eight dollars, and costs. Hutts appealed to the circuit court, wherein Williams again recovered judgment against him, for eight dollars, and costs. Hutts appealed to this court, and here Williams moves to dismiss the appeal for want of jurisdiction, because the amount in controversy, exclusive of interest and costs, does not exceed ten dollars. His motion must be overruled. Hutts appeals, and the amount claimed in his set-off is the amount in controversy here. Little v. The Danville, etc., Plank Road Company, 18 Ind. 86; The Morton Gravel Road Company v. Wysong, 51 Ind. 4.

The appellant complains because the appellee subpmnaed several witnesses and examined only one, and taxed the costs to the appellant. Perhaps he did not examine the others because the appellant offered no evidence in support of his set-off. We can not tell; the evidence is not before us, and we must presume that the court was right. Leyner v. The State, 8 Ind. 490; Fromer v. The State, 49 Ind. 580.

The judgment is affirmed, with costs and ten per cent, damages.  