
    John Fletcher vs. Daniel G. Benbrook.
    An action of assumpsit upon an open account, is not embraced in the words “action on the case,” used in the statute (H. & H. 572, § 104,) which provides that in all actions on the case, &c., if the jury find under ten dollars, the court shall not adjudge a greater amount of costs, except in the contingency provided by the statute.
    In error, from the Adams circuit court. Hon. G. C. Cage, judge.
    Daniel G. Benbrook sued John Fletcher, to the October term, 1838, of the circuit court, in an action of assumpsit, upon an open account, for the sum of $1823 75, for medical services rendered to him and his servants, and medicines furnished. The defendant pleaded payment, and filed an account, amounting to $4396 33.
    The cause, at the February special term, 1840, by consent of parties, was referred to arbitrators, who returned to the court “that obstacles were opposed to their progress which they found it impossible to remove, and they therefore referred back to the honorable court the case committed to their decision, with the opinion, respectfully, but positively, expressed, that no tribunal is competent to its trial and decision which is not possessed of the triple terrors of a sheriff, posse, and jail.”
    At the May term, 1840, the cause was submitted to a jury, who assessed the plaintiff’s damages at $1805 75; but the court granted a new trial.
    At the November term, 1840, the cause was again tried, and a verdict for $8 70 rendered for plaintiff; for which sum the court gave judgment, and also for the sum of $222 25, costs.
    At the May term, 1841, the defendant moved to amend this judgment, on the ground that more costs were rendered than the amount of the verdict, which motion was overruled.
    An execution issued accordingly, for judgment and costs: which the defendant moved to quash, for the same reason, but the court overruled the motion; upon which the defendant prosecuted this writ of error.
    
      Quitman and MMarran, for plaintiff in error.
    The court, in this case, gave judgment for a larger amount of costs than the sum found. The language of the statute, (H. & H. 572,) “ and in all actions upon the case, actions of covenant, and actions of debt, for a penalty intended to secure the performance of a condition or covenant, when the court, before whom the trial shall be, shall not be satisfied, and enter upon the minutes, that the action was. neither frivolous nor vexatious, if the jury find under ten dollars, the plaintiff shall not recover more costs than the sum so found;' and if more costs are awarded the judgment shall be void, and shall be amended upon a motion, at any time, by the court who awarded the same,” &c.
    The only question is, whether this is an action on the case, within the meaning of the statute. The declaration and the writ properly calls it an action on the case. From its connection with actions of debt and covenant, we conclude the object of the legislature was to prevent frivolous actions of all kinds, and as assumpsit is technically an action on the case, why should it not be included.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit, brought by defendant in error against the plaintiff in error, in the circuit court of Adams county, upon an open account for a large sum of money. The defendant below interposed a large claim by way of payment or set-off, and the jury found a verdict in favor of the plaintiff for only $8 70 ; for which sum a judgment was rendered, and for $222 25, costs. The defendant then moved the court, that no more costs should be taxed than the amount of damages. The court overruled the motion. At the succeeding term he moved to quash the execution, which was also overruled. The case was then brought by writ of error to this court.

The writ of error is intended to obtain a construction of the act to be found in H. & H. 572, sec. 104.

From the recent authorities, the term “ action on the case,” is held to comprehend only actions ex delicto. 1 Chit. Pl. 132. Actions of assumpsit to recover money, are not, according to those decisions, embraced in these words. We are led, therefore, to the conclusion, that this action is not within the statute, and that there is no error in the judgment.

The judgment is affirmed.  