
    Spear against Jamieson.
    In Error.
    ERROR to the Common Pleas of Franklin county, in a suit brought to April Term, 1809.
    Jamieson, the plaintiff below, brought an action against Spear, the defendant, in which he claimed a balance of upwards of 400 dollars, for work, labour, and services, principally for making coal for the defendant’s ironworks.*' The cause was submitted to arbitrators, under the compulsory arbitration act, and a report made in favour of the plaintiff for 100 dollars. From this report the defendant appealed. The cause was afterwards referred to arbitrators by consent of the parties, and an award made in favour of the plaintiff for 100 dollars: each party paying half the costs. The Court of Common Pleas were of opinion that the plaintiff was entitled to full costs ; because his account against the plaintiff amounted to more than 100 dollars: and was reduced to 100 dollars by reason of a set of". Judgment was therefore entered for 100 dollars and full costs. The error assigned in this Court was the giving judgment for the costs.
    
    It is well settled that a plaintiff, though he does not recover more than 100 dollars in the Common Pleas, shall liave his costs, if his cause of action was reduced to 100 dollars or less by a set off.
    If arbitrators,chosen by consent in such case, award for the plaintiff 100 dollars, and that the parties shall each pay their own costs, the plaintiff notwithstanding shall recover his full costs.
    And if judgment for full costs be given by the Common I,Icas> the Supreme Court cannot enquire into facts not appearing on the r.ecord.
    
      
      Crawford and Duncan for the plaintiff in error,
    contended that the plaintiff was not entitled to costs in a case like the present, unless he had, previous to commencing his action, made affidavit that he believed his demand exceeded 100 dollars, pursuant to the Act of 27th March, 1804. The only decision ever made to the contrary, was in the case of Brailey v. Miller,
      
       in Philadelphia county. Jamieson's account was for coaling so many cords of wood : and he credits the defendant for sundry payments and sundry provisions furnished. But the defendant claimed an allowance for coals badly-made,-and for the works standing still for a considerable time, in consequence of a sufficient quantity of coal not being made according to contract. These damages arise from the same contract on which the plaintiff’s cause of action is founded, and might be given in evidence on the plea of nonassumpsit and payment: the plaintiff not being entitled to recover more than in equity he ought to recover.
    
      Chambers and Riddle, contra.
    Referees cannot give the costs or part of the costs to. the defendant, where the law gives the costs to the plaintiff: as Was the case in this suit. By the act of 28th March, 1809, sect. 13. if the defendant appeals, he shall give security to pay all the costs in case the plaintiff i-ecovers as much or more thah the sum awarded. The law is well settled, that in case the plaintiff’s demand is reduced by'set off, it shall not prevent the recovery of full costs.Cooper v. Coates.
      
       The plaintiff was obliged to sue for his whole account in’the Court of Common Pleas : because’ he could not tell whether the defendant would set up a claim for damages on account of bad work, 6r stoppage of the works, The defendant was not obliged to do it by way of discount. The defendant also claimed an allowance for sundry sums paid on account of the plaintiff to third persons: exclusive of colliers. Nothing which is the subject of an action by the defendant against the plaintiff can-be given in evidence by way of non-assumpsit: all such demands aré in the nature of set'off. They cited Primer v. Kuhn.
      
    
    
      
       2 Dall. 74.
    
    
      
       1 Dall. 308.
    
    
      
      
         1 Dall. 225. 453.
    
   Tilghman C. J.

(After stating the case.)- It is not contended by the counsel- for the plaintiff in error, that the referees had a right to deprive the plaintiff of any part of his costs, if the amount of the sum awarded carried costs. But they rely on the act of assembly of 27th March, 1804, which denies costs to a plaintiff recovering not more than 100 dollars, unless he makes affidavit, at the commencement of his action, that he believes he has a right to recover more than 100 dollars. It is well settled, that although the plaintiff does not recover more than 100 dollars, he shall have his costs, if he had a good cause of action for more than 100 dollars, which was reduced to. 100 dollars or less, by a set off. The reason is, that the defendant might avail himself of the set off, or not, at his pleasure, and therefore the plaintiff could not safely bring his action before a Justice of the Peace, who has no jurisdiction, beyond the sum of 100 dollars. But the defendant denies that the plaintiff’s demand was reduced by a set off. The deductions claimed by the defendant, were principally on account of the badness of the coal made by the plaintiff, in consequence of which the defendant’s works were stopt for a considerable time to his great damage ; and this, it is contended, might be given in evidence under the plea of non-assumpsit, without a s.et off. The Court of Common Pleas having decided that the plaintiff’s demand was reduced by a set off, we ought to suppose that they enquired into that matter, and were satisfied of it. And this they might have done, by calling the referees before them, and examining them, which would not appear on the record. It does appear, however, by the papers sent up with the record, that defendant exhibited some charges^ which were proper subjects of set off; such as payments to third persons of- money due to them from the plaintiff. When the parties appear before referees, many things take place which are not introduced into the record. This Court has no opportunity of knowing these things; but the Court of Common Pleas has ; and, whenever it is necessary, they enquire into them by parol evidence. Now this question of costs having been brought before the Court of Common Pleas,, and they having decided that the plaintiff’s demand was reduced by a set off, we cannot say there was error, unless we perceive it on the face of the record. This I cannot perceive, because I am not fully informed of the defence made by the defendant before the referees. I cannot say, therefore, that there is error. My opinion is that the judgment should be affirmed.

YeaTes J.

The law is correctly stated in Cooper v. Coates, 1 Dall. 308. that a set off, reducing the plaintiff’s demand, will not affect his right to recover costs, although a payment on the foot of the contract sued for must necessarily produce that effect. The several accounts of the parties are agreed to be considered as parts of the record. But judging from these alone, we cannot decide how far any items of defalcation have been allowed by the referees. This we lenow, that se* veral articles claimed in the account of Spear, such as cash paid for the taxes of Jamieson, for washing, See. were merely set offs, and if a single cent was allowed for them, the latter would be entitled to costs. We are not, however, left to conjecture. The Court of Common Pleas possessed full means of information on this subject, either from the admission of the parties, or the testimony of the referees. It lay with them to approve or disapprove of the award, and they have rendered judgment for the plaintiff below, with full costs, stating it in the record that it was a case of set off. I feel no difficulty in asserting that we are concluded by their decision on this fact, and it follows of course that their judgment was correct, and should be affirmed.

Gibson J. concurred.

Judgment affirmed.  