delivered the opinion of the court.

This was an action of assumpsit, brought by defendant in error against the plaintiff in error, in the circuit court of Adams county, upon an open account for a large sum of money. The defendant below interposed a large claim by way of payment or set-off, and the jury found a verdict in favor of the plaintiff for only $8 70 ; for which sum a judgment was rendered, and for $222 25, costs. The defendant then moved the court, that no more costs should be taxed than the amount of damages. The court overruled the motion. At the succeeding term he moved to quash the execution, which was also overruled. The case was then brought by writ of error to this court.

*621The writ of error is intended to obtain a construction of the act to be found in H. & H. 572, sec. 104.

From the recent authorities, the term “ action on the case,” is held to comprehend only actions ex delicto. 1 Chit. Pl. 132. Actions of assumpsit to recover money, are not, according to those decisions, embraced in these words. We are led, therefore, to the conclusion, that this action is not within the statute, and that there is no error in the judgment.

The judgment is affirmed.