delivered the opinion of the court.
The petition charges that the plaintiff sold a quantity of sugar to the defendant who is indebted to her for the price. He resisted her claim on the plea of the general issue. There *715was judgment for the sum of sixteen dollars, and she appealed.
When it appears there was no allegation or proof of an amicable demand before the inception of the suit, the defendant may, on asking it in his answer to the appeal be allowed his costs in both courts.The evidence shows that the sugar was shipped to New-York by the defendant at the request of A. L. Mayronne, the plaintiff’s agent, to whom he communicated the account of sales, and by whom it was approved. That the defendant furnished said agent with the necessary supplies for the plantation of the plaintiff, of which said A. L. Mayronne was agent; and the amount of these supplies deducted from the net proceeds of the sale, leaves but a balance of sixteen dollars in favor of the plaintiff.
The appellee has prayed an amendment of the judgment by striking out the part which condemns him to pay costs. There is no allegation or proof of an amicable demand before the inception of the suit. The plaintiff was not therefore entitled to costs.
It is therefore ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, and that the plaintiff recover from the defendant the sum of sixteen dollars and pay costs in this court.