
    Cooper versus Coats.
    ABOND and Warrant to confess Judgment had been executed by the Defendant for £.600. Before the Judgment was entered up, he had paid so much of the money as reduced the sum really due to less than £.10: And the question stated for the opinion of the Courts, was, whether the Plaintiff should be allowed costs?
    
      
      Hallowed and S. Levy urged,
    that this was the case of a Bond with a warrant of Attorney, upon which they could not have confessed Judgment before a Justice; that a Justice could not have taken cognizance of a set off exceeding £.10; and that the penalty of a Bond was intended to cover the interest and costs; so that, even for the surplus, it was necessary in England to seek for relief in a Court of Equity.
    
      Sergeant contra.
    
    Where the sum is under £.5. the act of 1745, 1 State Laws 204. meant to give full jurisdiction to the Justices, except in certain enumerated cases; and the same jurisdiction is afterwards extended to sums under £.10. by reference to that act. The expressions of the Legislature are “ that all actions for debt or other “ demand for the value of 40s. and upwards, and not exceeding “ £.5 &c. shall be cognizable before any Justices &c.;” which word value must intend something more than a penalty; for the penalty of a Bond, being generally double the sum due, would exceed £.10. although the value of the debt might be less. In the present instance Judgment is taken only for £.7. Debt upon a Bond for the Payment of money, is within the jurisdiction of the Justices; but, if the opposite construction were to prevail, the act, which was framed to save costs, might in almost every case of a Bond be defeated.—This is not like a set off, which we might defalc or not, as we pleased; and, as to its being the case of a Judgment confessed by warrant, that will be no recommendation to the favor of the Court.
    Shippen, President.—in the case of a set off, this rule, with respect to costs, would be subject to great inconveniency; for, as it happened this Term, in Coxe v. Bolton, a set off of £ 60. might be given in evidence, though the Plaintiff could never bring the matter to a trial before a Justice; as it was not in his power to say whether the Defendant would resort to an a action, or take advantage of the defalcation.
   The opinion of the Court was afterwards delivered to the following effect:

Shippen, President.

We think this case comes within the express words of the act of Assembly, declaring that costs shall not be recovered; and there is no evidence that the Defendant has entitled himself to the benefit of the exception, by filing a previous affidavit of his belief that the debt exceeded £10.

It is not our meaning, however, when an action is brought for a sum above £10. and the Defendant reduces it to less by a set off, which he might, or might not, have pleaded, that, in such a case, the Plaintiff is not entitled to costs. The reason and justice of the thing, would then be clearly in his favor.

Judgment for the Plaintiff, but without costs. 
      
       See 1 Wils. 19. 2 Stra. 1191. Acc.
      
     