By the R. S., ch. 151, s. 13, quarter costs only can be taxed for the plaintiff, when it appears on the rendition of judgment, that the action should have been originally brought before a justice of the peaee. Whether an action ought to have been so brought, is ordinarily to be determined by the amount of the judgment. If, as .in this case, that amount does not exceed twenty dollars, the plaintiff’s costs can be only one quarter part as much as his debt or damage, unless a different rule of taxation is authorized by some other statute.
It is contended that the provisions of the R. S., ch. 115, s. 99, apply to this suit. That section provides, that “in actions on contract, in which an account is filed in set-off, although the damages found for the plaintiff shall not exceed twenty dollars, he shall be entitled to full costs, provided the jury shall certify in their verdict that the damages were reduced as low as that sum, by means of the amount allowed by them on account of said set-off, and as due upon it. We do not think that the facts in this case bring it within the provisions of this statute. There is nothing which satisfactorily shows that the judgment was reduced below twenty *430dollars, by means of anything dne to the defendant upon the account in set-off. We do not mean, however, to decide that the reason of such reduction must in all cases appear from the certificate of the jury. It may be shown by the agreement of the parties, or by the adjudication of the court, when the court, instead of the jury, by the express or implied consent of the parties, are called upon to assess the damages. The fact must appear in some way; otherwise quarter costs only can be allowed.
From the exceptions in this case, it appears that the defendant filed his account in set-off; and offered to be defaulted for a sum less than twenty dollars; but it does not appear, either from the offer, or its acceptance, or in any other way, that the account in set-off was the reason why no more was offered, or why the offer was accepted. In cases such as this, the plaintiff, if he wishes to recover full costs, should be careful to have it appear upon the docket, that his acceptance of the offer was upon the ground or condition that his judgment should be regarded as being reduced to the amount accepted, by reason of the amount due to the defendant upon his account filed in set-off. This not having been done, the exceptions must be overruled.
Exceptions overruled.