The opinion
GEORGE HONNITER against JAMES BROWN.
A judgment was rendered by a justice of the peace for the plaintiff, the . defendant appealed to the Common Pleas, he afterwards appealed.from an award of arbitrators against him, and paid the costs. Upon a trial of the cause by a jury, the defendant gave evidence which had not been given to the justice nor to the arbitrators, and a general verdict was rendered in his favour. Held: That he was entitled to recover from the plaintiff the costs which he had paid upon the appeal.
Error to'the Common Pleas of Lycoming county.
This suit, in which James Brown, the defendant .in error, was plaintiff below, and George Honniter was defendant, originated before a justice of the peace, who rendered a judgment in favour of the plaintiff for eighty dollars, from which the defendant appealed to the Common Pleas, where the cause was referred under the compulsory arbitration law; the arbitrators made a report in favour of the plaintiff for ninety dollars. From this award the defendant again appealed, and paid the costs, amounting to thirty dollars. The cause was afterwards tried by a jury, and a verdict and judgment rendered for the defendant. The defendant gave evidence to the jury which had not been given to the justice, nor to the arbitrators.
The question in the court below was, whether the defendant was entitled to recover from the plaintiff the costs which he had paid when he appealed from the award of arbitrators.
That court determined that the costs paid upon the appeal, under the circumstances of this case, were not recoverable from the plaintiff
Parsons, for plaintiff in error.
The defendant, having given new evidence to the jury, cannot recover his own costs; under the circumstances of this case, each party must pay his own, but those which the defendant seeks to recover aré the costs of the plaintiff, paid by him on the appeal. Gonsalus v. Liggett, 1 Rawle, 427.
Armstrong and Anthony, for defendant in error.
Cited Fleck, v. Boucher, 16 Serg. Rawle, 37-3. Sheaffer v. Landis, 1 Serg. Sf Rawle, 449. Kimble y. Saunders, 10 Serg. Sf Rawle, 193. Purd. Dig. 20.
This court was of opinion that the defendant was entitled to recover the costs paid by him on the appeal.
Judgment reversed.