On the 21st of January, 1862, Hays sued Wallace before a justice of the peace.

On the 8th of February, 1862, and before the trial of the cause, Wallace offered, by written notice to Hays, to confess judgment in the suit for 7 dollars, and the costs up to the time of rendering Judgment. Hays refused to accept judgment for that amount. A trial was had, and he recovered judgment for but 6 dollars and 85 cents, while the costs taxed against him, accruing after notice of the offer by Wallace to confess judgment, amounted to 10 dollars and 60 cents.

Hays appealed to the Common Pleas, and there recovered a judgment for 8 dollars and 86 cents, being 1 dollar and 86 cents more than Wallace had offered to confess judgment for. This judgment showed that Hays ought to have recov-' *253ered full costs before the justice. But still, he did not increase the judgment for principal due him against Wallace 5 dollai’s; but, including the costs, if they were to be thrown upon Wallace, on account of Hays recovering more than 7 dollars, then Hays did gain, by the appeal, more than 5 dollars. Indeed, he entirely avoided the judgment against him for costs, and he was compelled to appeal to do this, even if he had not cared to appeal from the judgment for the principal sum. "We think this case falls within Sutherland v. Flinn, 16 Ind. 86, and that the plaintiff rightly recovered full costs in the Common Pleas. But the judgment is right under Kuhn v. Krammis, at .this term.

The judgment is affirmed, with costs and 1 per cent, damages.