The opinion of the court was delivered by
Tart, J.The only question in this'case arises upon the taxation of costs against the respondent. The justice before whom the case was tried certified in the copies of appeal, that the costs in the justice trial were $110.89. On the hearing before the clerk of the County Court, he found that $36.98 of that sum were illegally taxed. The Couuty Court held that, that court-had no legal power to revise or amend the taxation certified to by the justice, as appeared in the copies of appeal’; to this ruling the respondent excepted. The statute is silent upon the subject; *59but, as an appeal, if entered in the County Court, vacates the judgment of the justice, we think that all questions before that tribunal including those of costs can be adjudicated anew in the appellate court. This question was not involved in the decision of the unreported case .of Fish v. Donohue, at the January Term of this court in 1882. The clerk found in that case that tho costs were legally taxed before the justice ; and the' only objection made by the defendant to their allowance was that they exceeded the amount of tho damages recovered in the County Court.
In Mattoon v. Mattoon, 22 Vt. 450, the defendant recovered, and the justice taxed his costs allowing him forty dollars for travel from his residence in Ohio. In the County Court on appeal, the plaintiff became nonsuit, and the defendant recovered his costs as allowed by the justice. But that judgment was reversed in this court, and travel allowed within this State only.
We think it a safer rule to hold that the taxation of c<»sts by the justice is not final when the cause passes by appeal to the County Court. The illegal costs, therefore, should have been disallowed. There was error in the judgment below in the taxation of costs, and the exceptions are sustained and costs allowed at $13.91, and sentence corrected accordingly.