If an action be brought in a court of record against a sheriff for not returning an execution, and the plaintiff recovers less than. $50 damages, he must pay the costs of the action. It is not one of the actions of which, according to section 54 of the Code, a Justice of the peace has no jurisdiction. This result must follow, even if it be conceded that section 53 is not sufficiently comprehensive to confer jurisdiction of such an action on a Justice. Subdivision 3, of section 304, cannot be construed as referring to section 63 as well as to section 54.
Section 53 does not grant jurisdiction of any action in which the amount claimed exceeds $100. Section 304 does not permit the amount claimed to affect the question of liability for costs, but only the amount recovered, unless the action be one of those enumerated in section 5.4, or one of those in which, by sub. 4 of section 304, a party recovering less than $50 will recover as much costs as damages. (Reported in 15 How. Pr. R. 281.)