#### Kinman, appellant v. Bennett, appellee.

Appeal from Pike.

Where a cause is dismissed upon motion of the plaintiff, it should be at his costs. Where the record of the Circuit Court does not show for what cause an appeal was dismissed, and a judgment for costs is rendered against the appellant, the judgment will be reversed.

This was originally a suit before a justice of the peace of Pike county, by Bennett against Kinman. On the return of the summons, to wit, on the 9th day of January, 1836, the parties apKeared before the justice, and after the hearing of the cause judgíent was suspended by the justice for ten days, at the end of which time, to wit, on the 18th day of January, 1836,.judgment was rendered against Kinman for f>64 and costs. Kinman appealed to the Circuit Court of Pike county, and filed his bond in the clerk’s ofiice, which was approved by the clerk, on the 23d day of January, 1836.

At the April term, 1836, of the Court below, the cause was continued; and at the September term following, the Hon. R. M. Young, presiding, the defendant moved to dismiss the suit for want of jurisdiction in the justices of the peace, and the plaintiff also moved the Court to dismiss the appeal. The Court dismissed the appeal, and rendered a judgment for costs against Kinman, .from which he appealed to this Court.

Alpheus Wheeler, for the appellant,

cited R. L. 387 § 3, 390 § 9, 395 § 30.(1)

J. W. Whitney, for the appellee.

(1)

Gale’s Stat. 403, 405,409.

Wilson, Chief Justice,

delivered the opinion of the Court:

This cause was originally tried before a justice of the peace, from whose decision in favor of Bennett, the plaintiff below, Kin-man took an appeal to the Circuit Court, and that Court upon the motion of both the plaintiff and the defendant, dismissed the appeal, and gave judgment against defendant, Kinman, for costs; from which decision he prosecutes this appeal. There is no bill of exceptions, nor any thing in the record from which we can learn what the subject matter of the suit was, or for what cause it was dismissed. We are therefore of opinion that the Circuit Court erred in giving judgment against the defendant below, for costs. If the cause was dismissed for the want of jurisdiction in the Court, it should have been dismissed at the costs of the plaintiff; or if it was on the plaintiff’s own motion, that his cause was dismissed, it ought to have been done at his costs.

*327The judgment below is therefore reversed at the costs of the appellee.

Judgment reversed.