delivered-lthe-opinion of the Court.-
This was an action of trover brought by Hays the-(plaintiff'in-.error) against' Thomas the (defendant in error,) inthei-Montgomery Circuit Court, to recover the value of a-horse. Hays g,ot- a verdict and judgment for thirty dollars, and thereupon the Circuit Court gave judgment against the plaintiff-for the-costs of suit, to reverse which, judgment for costs,-Hays now prosecutes his writ of error in this-Court.
The plaintiff in his declaration- has laidahis damages at one -hundred dollars. The witnesses who were examined on the trial in the Circuit Court, stated the value of ihe horse to he from-fifty to seventy dollars. Fifty dollars was the lowest value named by -any of the witnesses. How the jury arrived at the conclusion that the horse was worth -only thirty.dollars, it is difficult to-conceive. The plaintiff made a motion for a new trial, because the verdict of the jury was against evidence;--which was overruled, and judgment of the Court thereon excepted to. It seems to us very clear that the Circuit Court erred in refusing to grant the plaintiff a new trial, and for that error the judgment would be reversed apd the cause remanded; -hut that the plaintiff now waives his right to a reversal for that canse;--and presents for the consideration of this Court the single question, whether the Circuit Court, under the provisions of the-llth section of the act concerning costs, Rev. Code, page 227, exercised its discretion soundly in adjudging the costs against ihe plaintiff? The words of the section are, “that where any action shall be prosecuted in any Court, the subject matter of which is cognizablé before such Court, hut the amount of the debt or damages recovered shall be below the jurisdiction of the Court, the plaintiff shall recover no costs, but may .have costs adjudged against him, in the discretion of the Court.
The evidence preserved on the record,’and which in the estimation of this Court would have entitled the plaintiff to a new trial, is -abundant to satisfy us that the discretion of the Circuit Court, under the provisions of the 11th section above cited,was not sundly exercised,-'and that the costs ought not to have been adjudged against the plaintiff under the provisions of the act above cited. The plaintiff having recovered less than fifty dollars, could recover no costs. The judgment of the Circuit Court, for the damages found by the jury, is therefore affirmed; and its judgement in awarding .costs agains the plaintiff, is reversed with costs.