On looking into the case, we find it unnecessary to determine,' whether, within the several statutory provisions, examined on the argument, the plaintiff would have been entitled to costs, had his claim been reduced to 50 dollars, by reason of payment, discount or set off. The 600 dollar note was not produced by way of set off, and the $200 note was merged in the one of $600, which was admitted to have been settled and paid; so that, in truth, the recovery was a balance, upon the notes of $39 50 and $28, which the plaintiff recovered, after deducting the set off of $24 dollars for board. The three last claims, alone, were in question upon the trial. The only ground on which it was contended, that a Justice wanted jurisdiction, was, that the demands of both parties exceeded $400. This is answered by its turning out, that the two large notes were not subsisting demands, and constituted no part of the amount between the parties. This brings the amount in controversy, below 100 dollars. The account intended by the statute must be subsisting, unliquidated accounts. So far as they have been settled, and a balance struck upon them, that balance can alone be properly considered the account between the parties. The case is clearly with • *417in the 4th section of the statute concerning costs. The plaintiff can take nothing by his motion, which is denied with costs; and the motion, in behalf of the defendant, is granted with costs. e
Rule accordingly.