
    Hartwell v. Harris, Appellant.
    On appeal from a justice of the peace, the plaintiff, if he recovers a judgment, is entitled to full costs, though the amount recovered in the court above maybe less than was recovered before the justice.
    In this action, brought before a justice of the peace, a judgment was rendered for the plaintiff for six dollars two cents, damages, and for costs.
    Upon appeal to the Court of Common Pleas, a judgment was rendered for the plaintiff, for two dollars, forty-six cents; and thereupon, upon motion of the defendant, it was adjudged that the defendant is entitled to costs of the proceedings upon the appeal, as the prevailing party,- and that the plaintiff is entitled to recover his costs of proceedings before the appeal.
    A bill of exceptions was filed by the plaintiff to this judgment, and allowed by the court.
    
      Westgate, for the defendant.
    
      J. S. Bryant, for the plaintiff.
   Bell, J.

The right of appeal from justices of the peace has always been favored, because the Constitution guarantees a right of trial by jury in such cases, which can be had in no other mode than by appeal. By the Kevised Statutes, (chap. 175, sec. 11,) If the plaintiff appeal in any action founded on contract, and shall not recover damages to a greater amount than were awarded by the justice, the defendant shall recover his costs on such appeal.” There is no other statute on the subject, except the general provision that costs follow the event of every action and petition, unless otherwise directed by the law or by the court.”

The application of the general rule is not necessarily attended with any peculiar hardship or inconvenience. The plaintiff, if he thinks his case requires it, may always remit any part of his damages, or strike out any part of his claim; and the defendant may always narrow the claim to what is really in controversy, by payment of money into court, or by a confession of a judgment; and if neither of these is done, it is not unreasonable that it should be understood that the question upon the appeal is not whether a greater or less amount should be recovered, but whether any thing is due. In such case the plaintiff, if he recovers any thing, is the prevailing party, and the defendant is to be regarded as prevailing only where he defeats the whole claim.

Upon these views we think the judgment rendered below is erroneous, and must be reversed, and a judgment rendered for the plaintiff for his costs before and after the appeal, and for his costs of this proceeding.  