¶1Incident to the judgment are the costs. This has been the law since the statute of Gloucester, (6 Edition, 1,) chapter 1, section 2. By 43 Elizabeth, chapter 6, if, in any personal action, with certain exceptions, the debt or damages to be recovered shall not amount to forty shillings, then the plaintiff can recover no more costs than damages: 2 Tidd’s Pr., 945, etc. If defendant pleads and proves tender of the whole sum due, he recovers costs. But if the plaintiff should succeed, on the trial, in proving a larger sum to be due than that tendered, though that sum be below forty shillings, yet the plaintiff will be entitled to costs: 3 BL, 304, n. In the case at bar, no tender was. made of any amount, but the whole sum was controverted, and the judgment of this Court invoked to set aside the whole verdict. The plaintiff in error “failed” to accomplish this, and is therefore “liable for the costs:” Code, 3625. There was no “judgment of reversal,” but it was “ considered and adjudged that the judgment of the Court below be affirmed, with direction,” etc.: Code, 4225.
¶2Judgment affirmed.