dissenting. The suit of the plaintiff is upon an account annexed, amounting to $36.80. The defendant seasonably filed an account in set-off, and then offered to be defaulted for nineteen dollars. Upon these facts the presiding judge “ decided and ruled, as a matter of law, that the judgment being for less than twenty dollars, the plaintiff was entitled to only one fourth of the damages as costs.”
It is not the rule of law that the plaintiff is to be restricted to quarter costs whenever his judgment is for less than twenty dollars. The statute prescribes a different rule :— “ if it shall appear on the rendition of judgment that the action should have been originally brought before a justice of the peace.” R. S., ch. 151, s. 13. The amount of the judg*431ment sometimes, but by no means invariably, determines the question. It not unfrequently is the case that the plaintiff is entitled to full costs, when his judgment is for less than twenty dollars. Williams v. Veazie, 8 Greenl. R., 106; ib. 138. Whenever the plaintiff, in any contingency, has a claim at the time his suit is commenced for a larger sum than is within the jurisdiction of a justice of the peace, he is entitled to full costs, though his judgment is for less than twenty dollars. Chesley v. Brown, 11 Maine R., 143. The decision in regard to costs must always turn — not upon the amount of the judgment — but upon the question whether, in any contingency, it was necessary for the plaintiff to bring his suit in this court. And this question must, in every case, be determined by the court as a matter of fact, and not of law.
And unless the facts show beyond any doubt that there could have been no such necessity, the plaintiff is entitled to full costs. For the general provision of law gives full costs to the prevailing party. R. S., ch. 115, s. 56. This applies to all cases not clearly excepted from it. Ellis v. Whittier, 37 Maine R., 548. It is not for the plaintiff, therefore, to show that he is entitled to full costs. He is so entitled, unless the facts make it “ appear ” affirmatively that he is not. The burden of proof is not upon him. If the facts leave it uncertain, or doubtful, the doubt is in his favor.
I cannot perceive how the facts in this case can authorize the conclusion that the action should have been brought before a justice of the peace. The plaintiff declares that there is due upon his account $36.80. The defendant does not deny it, but declares that he has an account against the plaintiff, on which is due $24.92, and he files it in set-off. There is no proof that anything was due upon either. The offer to be defaulted, and the acceptance of the offer, cannot reasonably be supposed to refer to any consideration but the balance of one account over the other. What right, then, has the court, without any proof, to assume that there *432was only the sum of nineteen dollars due on the plaintiff’s account; or that there was nothing due on the defendant’s account, — when he declares that it was all due, and when it is conclusively barred by the judgment ? Smith v. Berry, 37 Maine R., 298. And yet both of these propositions must be assumed, or proved, before it can “ appear that the action should have been brought before a justice of the peace.”
In the case of Hathorn v. Cate, 5 Greenl. R., 74, the defendant filed an account in set-off, and then offered to be defaulted for $15.50. The plaintiff accepted the offer, and the court held that he was entitled to full costs. I am aware that since that time another provision of statute has been made, that “ 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 by means of the account in set-off.” R. S., ch. 115, s. 99. But this provision manifestly applies to those cases only in which there is a verdict. All other cases are left as before, to be determined by the question whether the suit should have been brought before a justice of the peace.
It is suggested that the plaintiff, if he would have avoided being restricted in his costs, should have been “ 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 upon the account filed in set-off.”
It need not be said that such an entry would not be the certificate of a jury, “in their verdict.” Nor would such an entry, if made, afford any evidence beyond what is already before the court, of the fact stated. Such an entry would not bring the case within the provision of statute referred to. It was not for the plaintiff, therefore, to be careful to make it appear that his action should not have been brought before a justice of the peace. It was enough for him that it *433did not appear that his action should have been so brought. I am, therefore, of opinion that he is entitled to full costs, and that the exceptions should be sustained.