delivered the opinion of the Court at the ensuing term in Waldo.
As the sum tendered and deposited in court and the amount of the verdict added together exceed one hundred dollars, the plaintiff was originally entitled to a decision of his cause in this court without the peril of costs after the appeal, according to the provisions of the first section of the act of 1829, ch. 444. As the jury have found that the sum tendered was insufficient, the more proper course would have been for them to have returned a verdict for $178 44, and have left it for the court to deduct the amount deposited irx court, and rendered judgment for the balance. The question is whether the course of proceeding adopted, and the circumstance of the receipt of the money from the clerk a day or two after the appeal was entered and the court had adjourned, entitle the defendants to their costs since the appeal, the verdict being for a sum less'than $100; and we are all satisfied that they do not. The record shows us at once the reason why the verdict was not for the whole of the plaintiff’s demand ; and in this respect the case differs from Baker v. Appleton, 4 Greenl. 66. If we should allow costs to the defendants we should appear to pay more respect to form than to substance in the decision. We do not consider the receipt of the money from the clerk as any waiver of the plaintiff’s rights as to cost, or in any way affecting the interests of the defendants as to the money deposited. Motion denied.