The - opinion of the court was delivered by
Taft, JThe evidence detailed in the exceptions tended to show that the petitioner was deprived of his day in court by the mistake of the officer in making his return on the original writ. It thus made a case strictly within the provisions of section 1428, R. L. In such cases the discretion exercised by the court will not be revised here. Burton v. Barlow’s Est., 55 Vt. 434; Lillie v. Lillie’s Est., 56 Vt. 714. Under said section terms might have been imposed upon the petitioner, but none were. The court ordered the petitionee to pay the costs of the petitioner. If the petitioner fails to maintain his petition the court can order him to pay costs to the petitionee. R. L. s. 1431. We are not aware of any statute which justifies the court in ordering the petitionee to pay the petitioner’s costs when the prayer of the petition is granted, *389“ and it is only by force of our statutes that costs are ever taxed and allowed.” Tyler v. Frost & Co., 48 Vt. 486. The order as to costs was error.
Judgment affirmed save as to costs, in which respect it is reversed and cause remanded.