The action was misconceived. If any action can be sustained it must be in the form of trespass on the case. . It was improper for the Common Pleas to •adjudge- against Wales the costs of the appeal which, in their opinion, was lawfully made from the erroneous judgment of the justice. Whether this error should affect the whole judgment needs not be examined as for the reason •already mentioned the judgment is to be reversed.

Judgment reversed.