
    Harris vs Pendleton.
    Assumpsit. Case 79.
    
      April 17.
    Case stated.
    Error to the Clarice Circuit.
    
      Cosls. Damages.
    
   Judoe Breck

delivered the opinion of the Court.

Harris brought an action of assumpsit against Pendleton, alledging a promise by the defendant to give him employment as a carpentei, at one dollar per day ; that the defendant, having failed and refused so to employ the plaintiff, he had been thrown out of business, and sustained great damages thereby — plea non assumpsit — verdict and judgment for plaintiff for twenty dollars, and a judgment for defendant for his costs. The plaintiff has brought the case before this Court, complaining of the judgment for costs against him. It is insisted as the damages, according to plaintiff’s declaration, were not certain but indeterminate, that the case is not embraced by the act of 1828: (Stat. Law, 476,) but according to the construction and reasoning in the case of Huling vs Rife, (3 J. J. Marshall, 587,) belongs to a particular class of actions of assumpsit, over which a magistrate has no jurisdiction. If the allegation, by the plaintiff, in his declaration, in an action of assumpsit, that he had sustained consequential damages by the failure of the defendant to perform his promise, or that he could not tell what damages he was entitled to, would entitle the plaintiff to his costs, although' he recovered less than fifty dollars, the provisions of the statute could easily be evaded in almost every case, and the object of the act defeated.

Assumpsit on promise to give plaintiff employment, breach alledged on failing to do so, verdict andjudgment for $20, costs properly adjudged againsl the plaintiff.

Smith for plaintiff:

Egenton for defendant.

The plaintiff may have a jury before a magistrate to assess bis damages as well as in the Circuit Court.

In this case we think the plaintiff had the privilege of selecting his tribunal, but the selection was made at his peril. If he selected the Circuit Court and failed in showing that he had sustained damages by the failure of the plaintiff to perform his promise, to the amount of $50, he would not be entitled to his costs, but would be subject to the payment of defendant’s costs. He made bis selection and failed — the judgment against him for defendant’s costs is, therefore, right and is affirmed. /  