Page:United States Reports, Volume 1.djvu/320

Rh 

1788.

Hallowell and S. Levy urged, that this was the cafe of a Bond with a warrant of Attorney, upon which the could not have confeffed Judgment before a Juftice; that a Juftice could not have taken cognizance of a fet off exceeding Ł.10; and that the penalty of a Bond was intended to cover the intereft and cofts ; fo that, even for the furplus, it was neceffary in England to feek for relief in a Court of Equity.

Sergeant contra. Where the fum is under Ł.5. the act of 1745, 1 State Laws 204 meant to give full jurifdiction to the Juftices, except in certain enumerated cafes ; and the fame jurifdiction is afterwards extended to fums under Ł10 by reference to that act. The expreffions of the Legiflature are “ that all actions for debt or other ‘‘demand for the value of 40s. and upwards, and not exceeding ‘‘Ł.5. &c. fhall be cognizable before any Juftices &c ; ’’ which word value muft intend fomething more than a penalty ; for the penalty of a Bond, being generaly double the fum due, would exceed Ł. 19. although the value of the debt might be lefs. In the preferit inftance Judgment is taken only for Ł.7. Debt upon a Bond for the Payment of money, is within the jurifdiction of the Juftices ; but, if the oppofite conftruction were to prevail, the act, which was frame to fave cofts, might in almoft every cafe of a Bond be defeated. − This is not like a fet off, which we might defalc or not, as we pleafed ; and, as to is being the cafe of a Judgment confeffed by warrant, that will be no recommendation to the favor of the Court.

SHIPPEN, Preʃident.––In the cafe of a fet off, this rule,with refpect to cofts, would be fubject to great incoveniency ; for, as it happened this Term, in Coxe v. Bolton, a fet off of £ 60. might be given in evidence, though the Plaintiff could never bring the matter to a trial before a Juftice ; as it was not in his power to fay whether the Defendant would refort to an action, or take advantage of the defalcation.

The opinion of was afterwards delivered to the following effect:

SHIPPEN, Preʃident. – We think this cafe comes within the exprefs words of the act of Affembly, declaring that cofts fhall not be recovered; and there is no evidence that the Defendant has entitled himfelf to the benefit of the exception, by filing a previous affidavit of his belief that the debt exceed Ł.10

It is not our meaning, however, when an action is brought for a fum above Ł.10 and the Defendant reduces it to lefs by a fet off, which he might, or might not, have pleaded, that, in fuch a cafe, the Plaintiff is not entitled to cofts. The reafon and juftice of the thing, would then be clearly in his favor.

Judgment for the Plaintiff, but without cofts. KEELY See 1 Wilʃ.19. 2 Stra. 191. Ace.