The referee, to whom this action was referred by rule of court, awarded the plaintiff "five dollars and fifteen cents as damages and costs of court, and costs before the referee. . . . to be taxed by the court,” concluding his award with tbe following words : "I further find the plaintiff’s claim is reduced below twenty dollars by the amount in set-off; and there having been an offer to be defaulted for fifty dollars, I leave the question of costs to the court to be taxed in accordance with the legal rights of the parties.”
*442The justice presiding ruled that tbe plaintiff was entitled to full costs up to the day of the offer by the defendant to be defaulted, and no more; and that the defendant was entitled to full costs since the date of his offer. To this ruling the plaintiff alleged exceptions.
By E. S., c. 82, § 107, "On reports of referees, full costs may be allowed, unless the report otherwise provides.” Here the report "otherwise provides.” The referee instead of leaving the question of costs as left by the statute, or making a special decision in "relation” thereto, states certain facts, abstains from deciding as to the costs, and submits the question to the court.
By § 108, in case of set-off, the plaintiff is entitled to full costs, where-the damages are reduced below twenty dollars by reason of the amount allowed in set-off.
But in this case, besides the amount in set-off, there was an offer to be defaulted, the amount in set-off still remaining. A time was fixed for the acceptance of the offer, but it was not' accepted within-the time limited.
By E. S., c. 82, § 21, "If the plaintiff fails to recover a sum as due at the time of the offer, greater than the sum offered', he recovers such costs only as accrued before the offer, and the defendant recovers costs accrued after that time.”
The ruling was in accordance with the provisions of this section. The plaintiff refused an offer which exceeded the sum recovered. The equity is with the defendant. No reason is perceived why this provision is not equally applicable, when the case is referred after the offer, as when the amount due is found by a verdict. It is the penalty imposed for non-acceptance, when all that is due, is offered.
Hlxc&ptions overruled.
Barrows* Virgin, Peters, Libbet and Symonds, 33., concurred.