The affidavit contains all the requisites set out in the 40th section of the justice’s act, and was duly filed, according to the direction of that section. There was no necessity for two affidavits to the same fact; we are all of opinion, that the plaintiff would have been entitled to costs in the Common Pleas, had the cause been decided there; and that he cannot be in a worse condition by the defendant’s moving the cause to this court.

Eull costs ordered to be taxed.