This case comes before the court on a writ of error to the common pleas of Sullivan county; and the only-question presented for decision is, whether the plaintiff below was entitled to recover his costs, or was bound to pay costs to the defendant. The action was debt on the penalty of 500 dollars, in a bond, with a condition to abide by and perform the award of arbitrators. The damages assessed by the jury, under the breaches assigned, were under 25 dollars: the judgment, however, was entered for the penalty, and the court below decided that the plaintiffs were not entitled to recover costs of the *346defendant. This was incorrect. The plaintiffs' Were entitled teJ .recpver cpsts; the judgmeht being upon the penalty.: The da'a mages assessed', together .with the costs, regulates the amount to be recovered on the execution; but the judgment; being in form,' Upon the penalty,, the. costs follow of course. The judgment is'the test’by ’Which;,the right .to: costs'is determined’this has "been the long and well-settled imle of construction given, to-the’ . statute relative to costs."- ,(2 Johns. Cas. 206. 2 Caines, 10 Johns. Rep. 219.) The judgment of .the court below ¿must,.' >‘accordingly,-be reversed. ' ■' . V" • . v--.
judgment réversédí