
    Cochran v. Kellum and another.
    “Where the plaintiff’s claim is reduced by payment to less than $100, the defendant recovers the costs of the suit. (Note 20.)
    
      Xt seems to bo no objection to the jurisdiction of the District Court that the claim sued on is reduced by proof of part payment to less than S100.
    Where there is no statement of facts the presumption is that the evidence sustained the allegations of the petition or answer, according to the verdict of the jury.
    Error from Polk. Cochran sued Kellum and TVhetmore on an arbitration bond. The defendants pleaded the award, set-off, and payment. Verdict for the plaintiff for $81.78. Judgment in favor of the plaintiff for $S1.78 and against liim for the costs of the suit. There was no statement of facts. The error assigned was the judgment against the plaintiff for costs.
    
      Yoakum %• Taylor, for plaintiff in error,
    argued that the “payment” contemplated by the 4th section of act of Eebrury 5, 1840, is a payment made on the claim sued on, and not payments and outstanding equities provided for in the claim or evidence of the claim itself. This is a suit on an arbitration bond. The defendants in error do not plead “payment” of the bond. They plead the award, payment of the award and set-offs recognized by the award. It cannot he properly said in such a case that the plaintiff'’s claim — the bond — was reduced by “payment.”
   Lipscomb, J.

The error assigned is that the court erred in rendering the judgment against (lie plaintiff for costs. The question depends entirely on the character of the evidence on which tiie jury returned their verdict. If the amount sued for by tiie plaintiff he reduee'd by set-off to an amount not within the jurisdiction of the court, judgment'shull still lie given for the amount due the plaintiff and for costs of suit. But should the claim of the plaintiff be reduced lo a sum not within tiie jurisdiction of the court by payment, then the judgment shall bo given for the plaintiff for the balance due, but the, defendant shall recover the costs of the suit. (Acts 4, vol. 63, sec. 4.) If the evidence was eonlined to the aceouut filed and made an exhibit under (lie plea of set-off, then the judgment would be manifestly wrong. But if payment was proved tinder the averments in the answer, and tiie plaintiff's claim was reduced to the amount found by the verdict of live jury, being a sum under the jurisdiction of tiie District Court, tiie judgment was properly rendered against the plaintiff for costs. But there being no statement of facts, wo cannot know what was tiie testimony; and in ali such eases the iiresnmption is in favor of its being such as to support the judgment of tiie court. If tiie judgment was wrong and was founded ou evidence of the set-oil’, we can only say that the plaintiff ought to have shown that error by a statement of facts. There is no ground presented by the record to reverse the judgment. It is therefore affirmed.

Nora 26.—Watts v. Harding, 5 T., 386,

Judgment affirmed.  