
    *COLLINS v. JOHN.
    Penalty — remittitur—uncertain judgment — division of costs on error.
    A simple promissory note for money is not a penal obligation within the statute allowing the court to render judgment for the penalty, with leave to-issue execution for the sum due in equity.
    A plaintiff having obtained a judgment may remit in the court of error, any excess in the damages and judgment.
    Where a judgment is affirmed in part and reversed in part, the costs are equally' divided.
    Error to the Common Pleas. The case was assumpsit on a note for one hundred and fifty dollars due the 19th of September, 1831. The judgment was by nil dicet that the defendant, Collins, “did make the note, and assess his damages to $400, to be released on the payment of twenty-six dollars and costs.”
    
    The defendant in error, who was plaintiff below, now tenders a remittitur of all the judgment but the twenty-six dollars and costs.
   BY THE COURT.

Let the remittitur be entered.

The case was then submitted without argument.

BY THE COURT. This record does not clearly show what the judgment of the Common Pleas was for. If intended to be for a penalty under the statute (29 O. L. 66), it is bad, because the instrument which is the foundation of the suit is not within the provisions of the statute. If intended as a judgment of twenty-six dollars only, then the judgment for costs is erroneous. The remittitur which has been entered, leaves the judgment one for twenty-six dollars and costs. It must, therefore, be affirmed for twenty-six dollars, and reversed as to the costs. This, under our law, will leave each party to pay one-half the costs in error.  