#### Wallace A. Campbell, Plaintiff in Error, v. Thomas F. Giblin, Defendant in Error.

ERROR TO HAMILTON.

A party who takes an. appeal from the decision of a justice of the peace, cannot compel the appellee and plaintiff to give security for costs.

This action was brought before a justice of the peace of Hamilton county,, where a judgment was recovered in favor of the defendant in error. The plaintiff in error took an appeal to the Circuit Court of Hamilton county, and Beecher, Judge, to *55whom the case was submitted, again gave judgment in favor of the defendant in error, at May term, 1856, of the Circuit Court. At the appearance term of the Circuit Court, the plaintiff in error entered a motion that the defendant in error, and appellee in that court, should give security for costs, alleging that he had absconded, which motion was denied.

Nelson & Johnson, for Plaintiff in Error.

Tanner & Casey, for Defendant in Error.

Breese, J.

The second section of the act concerning “Costs,” R. S., ch. 26, is but a transcript of the first section of the act on the same subject, passed in 1827.

Under that act, it was held, and has been so adjudged ever since, that cases brought into the Circuit Court by appeal were not embraced by it. It applies only to suits originating in that court. There the plaintiff is in the court by his own act. In appeal cases he is not so; he is no longer a voluntary plaintiff, and is forced, against his own wishes and consent, into it. He is satisfied with the judgment of the justice of the peace, and should not be compelled to prosecute in another court against his own inclination, and pay also, or give bond to pay, for the privilege. An appellant is not permitted to impose such a burden upon an unwilling plaintiff

As to the facts of the case, they were fully before the jury, and they were justified by them in saying there was no special contract, and in finding as they did. The judgment is affirmed, with costs.

Tudgment affirmed.