There is no bill of exceptions in this case; and we must determine the question of costs from the pleadings and the verdict.
The second cause of action is upon a quamtwm, meruit for services. If the recovery of $25 applied to that count of the eomplaint only, we should he obliged to hold that “ the result *589of tbe trial shows that tbe controversy was cognizable by a justice of tbe peace.” Dunning v. Faulkner, 10 Wis., 394. In sucb a case, it is only tbe ad dcm/nv/m which takes tbe action out of tbe jurisdiction of a justice; and tbe plaintiff proceeds in tbe circuit court, laying bis damages above tbe jurisdiction of a justice, at bis peril.
But tbe first cause of action is upon express contract to pay a certain price for a certain amount of labor and materials, by computation exceeding $600, averred to be wholly unpaid. It is very certain that even if" tbe ad damrtmn were laid within bis jurisdiction, a justice of tbe peace could not take jurisdiction of an action on tbe contract pleaded. Felt v. Felt, 19 Wis., 193; Cooban v. Bryant, 36 id., 605.
It is very true that in pleading sucb a contract, tbe plaintiff might evade tbe jizrisdiction of a justice, by overstating tbe amount of work and materials; and doing so would be at bis peril of costs. But that is not tbe presumption here.
Tbe defendant pleaded a general denial, and a special defense to tbe first count, confessing and avoiding tbe contract. Non constat that bis special defense was not established as to tbe whole amount except tbe $25 recovered. In sucb case, tbe respondent would be entitled to bis costs; and we are to make all reasonable presumptions in support of tbe judgment. Van Patten v. Wilcox, 32 Wis., 340.
Ob. 60 of 1862 gives discretion to tbe circuit courts to allow costs upon verified complaints, in cases within tbe jurisdiction of a justice, where tbe sum demanded shall exceed one hundred dollars. "We think that tbe object of this statute must have been to enable tbe circuit court to award costs, in proper cases, to plaintiffs bringing their suits in good faith in that court, but failing to recover $50.
That being so, it would appear that verification of tbe original complaint claiming over $100 is sufficient for tbe discretion of the circuit court to rest upon, though tbe complaint be afterwards amended in some particular, not changing tbe *590cause of action or reducing tbe amount claimed to $100. And this record sufficiently shows that tbe circuit court is better able than this court, properly to dispose of questions of costs, in such cases, whether of right or of discretion.
By the Cowrt. — The judgment of the court below is affirmed.