Garter sued Grume for the use and occupation of certain land, and for failing to pay the agreed amount of produce for the use and occupation of land, and for the value of certain lumber.

Crume answered that he did deliver the agreed amount of produce for the use and occupation of the land mentioned, and he denied each and every allegation in the complaint. He also filed a bill of particulars of an account claimed as a set-off. The cause was tried, and a judgment was rendered for the plaintiff for a fraction over 24 dollars, and against him for the costs. He appeals to *198this Court to obtain a reversal of the judgment against him for costs, and nothing more.

The plaintiff proved on the trial the use and occupation of the land mentioned in his. complaint, and some other items, the value of all of which was over 50' dollars. The defendant proved that the land was occupied under a special contract, and that he had paid for the use of the land in the manner specified in the agreement, so that that part of the suit was disposed of.

The plaintiff did not show a claim, over and above the use of the land, of the value of 50 dollars, and hence the Court rendered judgment against him for costs. That was right. The statute is, (2 E. S. 126,) that—

“ In actions for money demands on contract, commenced in the Circuit Court or Court of Common Pleas, if the plaintiff recover less than 50 dollars, exclusive of costs, he shall pay costs, unless the judgment has been reduced below 50 dollars by a set-off or counter-claim, pleaded and proved by the defendant, in which case the party recovering judgment shall recover costs. "When the judgment is reduced below 50 dollars by proof of payments^ the defendant shall recover costs.”

Now, in this case, the judgment was reduced below 50 dollars by proof, on the part of the defendant, that he had delivered to the plaintiff the specific things he was, by the contract, to deliver to him as compensation for the use and occupation of the land mentioned in the suit. That was payment.

The judgment is affirmed with costs.