#### The Spring Valley Shot and Lead Co. *v.*Jackson & Robins.

Where a plaintiff, claiming over four hundred dollars, on the proof in the cause appears to be entitled to less than two hundred dollars, and by reason of set-offs recovers less than fifty dollars, he is not entitled to the costs of the suit.

The words “ *claim established at the trial,”*in the statute regulating costs, mean a claim so proved and established that it will entitle the plaintiff to judgment, unless it be reduced by a set-off. Establishing the claim presumptively, will not suffice, where it is defeated by counter-proof.

December 30, 1848.

Appeal from the decision of one of the justices at chambers, awarding the costs of the suit to the defendants. The suit was upon a guaranty dated April 27, 1847, by which the defendants became liable for all sums of money which might be received by Robins & Allen, of Boston, the plaintiffs agents, as the net proceeds of shot or other property which might be consigned to that firm for sale, by the plaintiffs. The agency terminated January 25,1848, and the plaintiffs claimed that there was due to them a balance of $414 51, for shot sold and unaccounted for by Robins *623& Allen. The cause was tried before referees, who reported $41 76 as due from the defendants to the plaintiffs.

On the trial, the plaintiffs proved by the accounts rendered by Robins & Allen, that there was a balance of shot to the above amount, unaccounted for. The principal item which went to constitute this balance, was a parcel of 248 bags of shot of the net value of $347 20.

On the other hand, the defendants proved that the proceeds of sales accounted for by Robins & Allen, within the period covered by the guaranty, exceeded the entire amount of the consignments within the same period, by the sum of $98 38. From the account thus proved, an item of $120, claimed to their credit by Robins <fc Allen, was disallowed by the referees.

It was proved by the defendants, that the 248 bags of shot were forwarded before the date of the guaranty, and were not in Robins &. Allen’s hands at or after the date of the guaranty; and the plaintiffs’ claim for the same was disallowed by the referees.

Besides the $120, with which the referees charged the defendants, they disallowed a claim of 20 14 for commissions, made by Robins & Allen.

The result was, that the plaintiffs, claiming a balance of $414 51, succeeded in having allowed to them $120, and the defendants claiming $98 38, were allowed $78 24 ; and for the balance, $41 76, the plaintiffs recovered.

*J. C. Smith,*for the plaintiffs,

referred to 2 R. S. 226, § 4, subdiv. 4; 2 lb. 614, § 9.

*A. Williams,*for the defendant,

cited *Matteson*v. *Bloomfield,*10 Wend. 555, and note to that case.

By the Court.

The statute allows costs to the plaintiffs, where he shall recover any sum in a court of record, if it appear that his claim, as established at the trial exceeded two hundred dollars, and the same was reduced by set-offs ;—or that the debts, demands and accounts of both parties established on the trial, exceeded four hundred dollars. (2 R. S. 614, § 9.) The act regu*624lating courts of justices of the peace, precludes those courts from taking cogniza ce of matters of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars. (2 lb. 226, § 4.)

This expression does not differ essentially from that used in the act respecting costs. The right to costs in this case, turns upon the construction of the word “ established,” in the statute. The plaintiffs made out by their opening pi oof, a claim to the amount of over four hundred dollars, but the proof on the part of the defendants showed that their claim was in fact less than one hundred and fifty dollars. It was not reduced by set-oils ; and the accounts of both parties claimed at the trial, as actually made out by all the evidence, were less than four hundred dollars.

The spirit of the cases cited from 10 Wendell, and the language of the acts, show that the expression “ established at the trial,” do not mean, a claim that shall be proved *prima facie*merely, but one so proved and established, that a judgment will be given upon it, unless a set-off prevents. If a claim presumptively made out, be defeated by counter proof, it is not *established*within the meaning of the statute ; whether such defeat be occasioned by contesting the claim itself, or by proof of payment. If the claim proved were over two hundred dollars, and were reduced by set-offs, the plaintiffs would be entitled to costs.

The appeal must be dismissed.