¶1This was an action brought by Shugart against Halliday, before a justice. After a trial in which the jury did not agree and were discharged, the plaintiff dismissed the suit. The justice thereupon taxed a part of the costs against the defendant, who took an appeal to the circuit court. On motion of the plaintiff the court dismissed the appeal. This was error. Although the court might properly refuse to re-tax the costs on the transcript of the justice, yet the defendant had a right to a trial, and after the trial to have the costs taxed by the court. If the defendant preferred to take the risk of a trial rather than pay the costs taxed against him by the justice, it was his privilege to do so. He had a right to appeal from the order of the justice as to costs.
¶2Judgment reversed.