¶1The plaintiff’s litigation in this case has been unprofitable. After not less than two trials in the court below, and two here, she has a verdict for twenty dollars, which it was stated at bar was less than she had been offered before she commenced her five years of litigation. The learned court below entered *313judgment on the verdict without costs, and the only question before us now is whether she is entitled to costs.
¶2The act of March 20, 1810, P. L. 33, provides: “ That if any person sue for any debt, except before a justice of the peace, and shall obtain a verdict thereon, which without costs of suit would not amount to more than one hundred dollars, not having, before issuing the writ, filed an affidavit that he did truly believe the debt or damages sustained exceeded the sum of one hundred dollars, he shall not recover costs in such suit.”
¶3The appellant alleges that the act referred to does not apply to this case, for the reason that the damages were unliquidated, and that the case was not within the jurisdiction of a justice of the peace. It may be conceded that if it were an action on the case for a tort, and the claim for unliquidated damages, it would not be within the jurisdiction of a justice, and the affidavit referred to would not be necessary. The declaration contains the common counts in assumpsit, and the plaintiff concedes that had the recovery been upon these, an affidavit would have been necessary to carry cost*. She relies, however, upon the special count. A careful examination of this count shows that it is strictly in assumpsit upon the promise to use due care and diligence in the use of her alley or passageway, and to pay her for any loss or damage to any of her property “by reason of the said defendants and other persons taking, rolling, fetching, carrying and drawing the said barrels of oil over and along the aforesaid alley whenever they, the said defendants, should be thereunto afterwards requested.”
¶4We are of opinion that the case comes clearly within the act of 1810, and as there was no affidavit filed, as required by that act, the judge below was right in entering judgment on the verdict without costs.
¶5Judgment affirmed.