*629The opinion of the court was delivered by
Redfield, J.This is a mere question of costs. The suit was brought before a justice of the peace ; and judgment was there rendered for the defendant to recover his costs ; and the cause appealed by the plaintiff. In the County Court, the defendant prevailed in the matters litigated; but there were three small items, amounting to $1.20, for money paid, which were not disputed, upon which plaintiff had judgment and for $5.00 costs. The County Court allowed the defendant to recover costs that accrued in regard to the litigated items, in which defendant prevailed.
The declaration is in the common counts. The two first items on which the defendant prevailed, for the sum of $148.50 under the declaration, could be recovered only on the count or claim of “ a like sum for certain work and labor, care and diligence,” &c. The items on which plaintiff recovered, could only be recovered in the count or claim “ for money paid.”
The statute 1444 sec., R. L., provides that a plaintiff shall recover no more than $5.00 costs if the amount of the debt, or damages recovered, does not exceed that sum. Section 1445 provides : “ When the plaintiff appeals from the decision of a justice, the County Court shall be governed by the same rule in taxing costs as is prescribed for the justice court.” There is no doubt then that the restriction of the plaintiff’s costs was in accord with the peremptory requirements of the statute. The general provisions of the statute,, sec. 1451, R. L., provide that: “ When an action pending in the County or Supreme Court involves the trial of several distinct issues, or of several distinct claims, the court shall allow to each party the costs accruing upon the issues or claims upon which he prevails.” The claims in this case were “ several and distinct ” ; this is enough to justify and make imperative the judgment of the County Court. And we think the issues in this case were several and distinct. The plea of nonassumpsit to the general counts, puts in issue the claim in the averments for money paid, and money had and received, and for labor done-, as fully as if those claims had been averred in several distinct, separate counts. No recovery could have been *630had upon the two first items, (which were the only items litigated,) except upon the averment, in the general count, for labor done and diligence bestowed. The defendant therefore recovered upon a separate and distinct issue, and a separate and distinct claim.
The judgment of the County Court is affirmed.