Bellas v. Oyster

The opinion of the Court was delivered by Sergeant, J. It was settled in Landis v. Shaeffer, 4 Serg. & Rawle 196, that when the defendant appeals from an award of arbitrators, and the verdict of the jury is for a less sum than the award, each party pays his own costs which have accrued subsequent to the appeal: and it was afterwards decided in Pratt v. Naglee, 6 Serg. & Rawle 196, that in such case the defendant is not entitled to a return of the costs paid on the appeal. These two cases seem to me to decide that the court below erred in making absolute the rule obtained by the plaintiff to show cause why judgment should not be entered [342] in his favour for costs, and were right in discharging the defendant’s rule to show cause why judgment should not be entered for the defendant for the bill of costs paid by him on his appeal from the the report of arbitrators. The verdict, was less favourable to the plaintiff than the award of arbitrators, inasmuch as by the latter he recovered three fourth parts of a tract of land, together with 6 cents damages and costs ; whereas, by the verdict, he recovers only 6 cents damages, and no part of the land. It is in vain to say that, in pursuance of the agreement entered into between the'parties, the plaintiff establishes that he had a,title to the land for which this ejectment was brought at the time of commencing the suit. He chose, pending the suit, to convey this title to Levan, who brought another ejectment against the defendant and recovered the land. The quest ion is, what has the plaintiff recovered 1 not what was his title at the institution of the ejectment. If he has voluntarily disabled himself from recovering by the verdict as much as the award gave him, it is his own fault. In Poke v. Kelly, 13 Serg. & Rawle 165, in debt on bond for the purchase money of land, where the defence was, existing incumbrances, which the plaintiff was bound to pay off, arbitrators were appointed who awarded the whole amount due on the bond to the plaintiff. On appeal by the defendant, the jury deducted the amount of the incumbrances and rendered a verdict for a sum less than the award. It was held that the plaintiff was not entitled to costs subsequent to the appeal, although the incumbrances were not paid off until after the appeal. This case seems to me to be in principle the same as the present. The plaintiff actually recovered less in consequence of his own act. The judgment below for plaintiff as to the costs subsequent to the appeal reversed, and judgment as to the residue affirmed.