delivered the opinion of the Court. This cause has come from the County Court for the purpose of having this court reverse the taxation of a bill of cost. The objection is not to the items in general, though there are two items that we presume are inadvertantly taxed, to wit, one dollar, instead of sixty seven cents, for signing a writ of error and the recognizance, and a three-dollar attorney-fee on a hearing before referees ; which ought not to be allowed. That fee being allowed only for trials in court.
The main objection is that the plaintiff is not entitled to his full cost, because the action was commenced before a justice of the peace and appealed by the plaintiff to the County Court.
The history of the case appears to be this: — Baker commenced his action before a justice, declaring upon a note of $12,64. The defendant appeared before the justice and pleaded in offset a book account of $26,50. The justice allowed the offset, and gave judgment for the defendant for a balance of $8,48. The plaintiff appealed to the county court. That court, on motion of the defendant, dismissed the appeal on the ground that the action was brought upon a note for less than $20. The plaintiff brought his writ of error before this court, two years since, and obtained a reversal of that judgment of dismissal, and reinstated his action upon the docket for trial upon the merits. See said case reported, in 1 Aikens R. 342. An issue of fact being joined, the case was ordered to the County Court for the trial of that issue.— At April term, 1826, of said County Court, the cause was continued on motion and affidavit of the defendant to the September term, when the parties, by agreement and rule of court, referred this action and all demands to certain persons as referees, who made their report at April term, 1827, in favor of the plaintiff, for about $32. The court accepted the report but ordered that the plaintiff’ tax no more cost, than if he had only recovered *145tbé amount of his note, which then was about $15. The defendant then moved for a new trial, which Was granted on terms of his paying the plaintiff his back cost in twenty days-, and the cause was continued; and at the last ternl the cost was taxed for the plaintiff, by Order of the County Court, at $'62,16. Upon the exceptions to that taxation tire cause has now been heard. ,The court Consider that the order of the County Court, on the acceptance of the report, curtailing the plaintiff about the taxation of cost, is a nullity. They might have accepted the report on terms only, and procured the plaintiff’s consent to a rule of that import j but without such consent it could not be done. Again, we consider that the plaintiff, having succeeded in his writ of error, and having finally recovered in the action, is entitled to his cost on the Writ of error, without regard to the amount of his damages» We, also consider that, as the reference was of all demands, the costs that arose aftér that reference are also taxable, without regard to the amount of damages. This has before been decided, and we deem it correct» We recollect no decision in which a reference of the action only had such an effect upon the cost, I, for myself, am inclined to drink it ought not; but of this, the court give no opinion»
Smalley and Adams, for die plaintiff. Swift and Smith, for the defendant.The principles above adopted, without receiving aid from the Continuance had at the request of the defendant, would entitle the plaintiff to recover all the cost he would otherwise be entitled to recover, and not be curtailed by the statute. — ’“Stat, 305» The ! costs thus taxed will stand thus :
Cost of the writ of error, not depending upon damages, $'15,31,
Cost that accrued after the reference, 27,58,
Other costs that do depend upon damages, 16,67,
The sum taxed, $59 56
But as the $3,33, now disallowed, was not objected to as itetns Wrong in themselves, the defendant recovers no cost of this Court this term, and as the plaintiff taxed wrong as to those items, he shall recover no cost sincé the County Court, Possibly the defendant might be entitled to cost of this court, had he succeeded upon the main point litigated before the County Court, as this mode stands instead of a writ of error; but that question is not presented by the case.