delivered the opinion of the court.
Relfe, administrator, sued Augustus and Myers Jones, in the circuit court, where he had judgment; to reverse which this writ of error is prosecuted.
The action is assumpsit for work and labor done in building a mill house. The bill of particulars shows an account for more than one thousand dollars’ worth of work *543done. The verdict was for eighty-six dollars and forty cents. The jurisdiction of a justice of the peace extended to ninety dollars. By the law in force when this action was commenced, it is provided, that “ where any action shall be prosecuted in any court, and the amount of debt and damages recovered shall be below the jurisdiction of the court, the plaintiff shall recover no c.osts, but may have costs adjudged against him, in the tion of the court.”
^ssumpsit, for and labor, commenced in the ^particulars showing an account for work than $°iOOO.°rVer-diet for plaintiff $86 an^at force, the plaintiff> where the a-adages recovered were below the jurisdiction of the recov'er costsn°but might have costs adjudged against j/^ouid haveg been hard, under circumstances mak<Tth<Tplaintiff pay the costs, still he could not re-gupremTcourt ' then reversed the of the circuit court, and proceeding to give such judgment in the case as the circutt court ought to have given, adjudged that the defendant in error recover his damages assessed in the circuit court, and pay his own costs, and that the plaintiffs in error pay their own costs. 'It is contended that the plaintiff ought to pay costs to the defendants below, (plaintiffs here.) The defendant in error was an administrator, and may be supposed to be more ignorant of the date of the accounts of his intestate than the deceased would have been. But had the mtes-tate himself brought this action, it seems to me that would be hard to make him pay costs, under the stances of the case. The demand was large, and-the account unliquidated. The statute forbids that he should recover costs, but leaves it at the discretion of the court to adjudge costs against him. No evidence is saved to show that the defendant in error had any knowledge of the true amount due his testator. Under the circumstances of the case, it appears to me that he ought not to be adjudged to pay costs, but the judgment of the circuit court must be reversed; and, in my opinion, this court ought to proceed to give such judgment in the case as the circuit court ought to have done — that is to say, that the defendant in error recover his damages assessed in the circuit court, and pay his own costs, and that the plaintiffs in error pay theirs. Such being the opinion of Judge Napton, the judgment of the circuit court is reversed, and judgment will be entered up as above intimated.