
    Brailey versus Miller.
    THIS action was brought to recover a debt exceeding £10, but, upon being referred, the debt was reduced by a set off, and the report of the referees was for no more than £8. As the plaintiff had not previously filed an affidavit of his belief, that the sum due exceeded £ 10, (agreeably to the provision of the 13th section of the act of the 1st March, 1745.) Bankson, contended, that he was entitled to recover costs. 1 Vol. Dall. Edit. p. 308. 2 Vol. p. 364.
    
      Howel, for the plaintiff, said, that if this action could not have been brought before a Justice of the Peace, his client was of course, entitled to costs. The demand, in fact, amounted to £20, although it was liable to a defalcation ; and it could not be known whether the defendant would elect to set off his debt in the present action, or to make it the foundation of a separate suit. If the defendant had been sued before a Justice, and declined making a set off, the plaintiff could not bring his debt within the Justice’s jurisdiction, and must, consequently, have been non-suited there; and it would be an intolerable grievance, to subject him to costs here, merely because his adversary, after the action was instituted, determined to take advantage of the defalcation. The act of Assembly meant only to impose costs on the plaintiff ; where the defendant actually owed no more than £10, at the time of bringing the action ; which was not the case before the Court. 1 Dall. Rep. 308.
   On the 11th of September, the President delivered the opinion of the Court.

Shippen, President:

The question to be decided is, which of the parties shall pay the costs, the plaintiff having recovered less than ten pounds. The £5 act provides, that where the person suing shall obtain a verdict or judgment for debt and damages, which, without costs of suit, shall not amount to more than £5. (not having filed an oath or affirmation, before the issuing of the writ, that he truly believed the debt due, or damage sustained, exceeded that sum) he shall not recover any costs. The act extending the jurisdiction of Justices to cases not exceeding £10 refers to all the provisions of the preceeding law.

The intent of the Legislature was to prevent the bringing actions in this Court, for debts within the cognizance of the Justices, by imposing the payment of costs on the plaintiff, unless he had previously filed an affidavit, that he believed his demand exceeded the specified sum. This provision, however, must be confined to the plaintiff’s own demand, and not extended to the case of set-offs, which the defendant may, or may not, at his pleasure, defalc. The demand in the present case, was oftensibly above £10 ; though it was in the power of the defendant either to reduce it, or not, by setting up his counter claim. The plaintiff could not, therefore, sue before a justice, because the defendant might there lieby ; and if afterwards he was liable to be defeated in the Common Pleas, he would, in fact, be punished in costs, for resorting to the only Court, in which his action could be maintained.

Wherever, therefore, an action is brought for a debt above £10, and the amount is reduced below that sum, by a set off, we think the plaintiff ought not to be charged with the costs.

Judgment for plaintiff, with costs.  