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Franklin against Wray
The opinion of the Court was delivered by
Kennedy, J.
This suit was commenced by the defendant in error, before a justice of the peace of Alleghany county, who gave a judgment in his favour for 16 dollars and 50 cents, and the costs of suit, against the plaintiff in error, who appealed to the court of common pleas; where the defendant in error entered a rule of arbitration, and obtained a report in his favour for 18 and 3-4ths cents only, and the costs of suit. Under this award all the costs, as well those incurred on the appeal as those which accrued before the justice, were taxed against the plaintiff in error, and this is the error complained of.
It has been admitted that in this case new evidence was given by the plaintiff in error, on the trial of the cause upon the appeal, which was not exhibited on the trial before the justice. This makes the case similar, in every respect, to Grace v. Altemus, 15 Serg. & Rawle
[130] 133 ; and Kemble v. Saunders, 10 Serg. & Rawle 193 : where it was decided by this court, that the plaintiff before the justice was entitled to recover from the defendant his costs which accrued before the justice, but that each party must pay his own costs on the appeal. And so in the case of Downs v. Lewis, 13 Serg. & Rawle 198, the same principle is recognised; and said, that if the defendant before the justice had given no new testimony on the trial upon the appeal, that he would have been entitled to have recovered full costs ; and the award of the arbitrators, which allowed costs to the plaintiff before the justice in that case, Avas therefore reversed as to them.
The arbitrators in the present case were, therefore, wrong, in awarding costs to the plaintiff below, after having reduced by their award the amount of the judgment of the justice. As to the costs on the appeal, the award of the arbitrators and the judgment of the court below are reversed, and ordered that each party pay his own costs, accruing subsequently to judgment of the justice, and that the plaintiff in error pay the costs on the proceedings before the justice.