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The President, Managers and Company of the Schuylkill Navigation Company against KITTERA
Smith, J., (after stating the case,) delivered the opinion of the Court as follows:— .
By the elev.enth section of the act of- assembly of the 8th of March, 1815, it is provided, “ That either party may appeal to the court within thirty days after such report may have been filed in the prothonotary’s office of the proper county, in the same manner as appeals are allowed in other cases.” The language of this clause — the oath, that the party appealing apprehends injustice may be done, the filing of the report, and a certificate of the oath with the prothonotary, the practice of entering into a recognisance, according to the directions of the arbitration act, and the trial by a jury afterwards, all indicate, that the appeal given by this act, is to be considered as analogous to the appeal, from the award of arbitrators, and is to be governed and regulated'in the same manner.
How then are costs, accruing on such appeals to be paid? It has been repeatedly decided, and since the case of Landis v. Shaeffer, has been the -practice and law in every Court of Common Pleas in this state, that if the defendant appeals and obtains a reduction of the amount of the award, the plaintiff is not entitled to recover costs accruing in consequence of the appeal. 4 Serg. & Rawle, 196.
The Court of Common Pleas, therefore, erred, when they allowed the complainant the amount of his bill, fifty-nine dollars and ninety-eight cents, or his costs since the appeál. Another error assigned is, in the decision of the court, declaring, that the company was the unsuccessful party within the meaning of the act of assembly, although it had diminished the amount found by the first jury from twelve hundred dollars to eight hundred dollars.
By tlie act of the 1st of February, 1821, the daily pay and mileage of the jurors, brought together in consequence of the appeal, are directed to be paid out of the treasury of the county in which the trial may be, and the same shall be reimbursed to the county by the unsuccessful party. It is tó be remarked, that this act confers a very important privilege exclusively upon the company — the privilege, on appeal, of changing the venire to an adjoining county, not bordering on the river' Schuylkill.
The question then is, what is meant by “ the unsuccessful party.” Is it the unsuccessful party in the appeal, or the unsuccessful party in the whole proceeding, or suit? Had the legislature intended to confine this designation to a part of the entire proceeding, we are war 445 ranted in believing, that their language would.hav.e been explicit to that effect: they would have said, that the daily pay and mileage of the jurors should be reimbursed to the county by “the unsuccessful party” in the appeal.
We cannot restrain this general expression, applicable to a party to the suit, where it might have been so easily limited without violating what we believe to have been the equitable intention of the legislature, since we doubt not, that they meant, that the'party who, in the event of the suit, was found to have been in fault, should reimburse the county for these expenses; and that meaning, the terms which they have employed, aptly convey.
One jury had declared, the injury done by the company’s works to the complainant to be twelve hundred, dollars; another jury, summoned on the' application of the company, declared it to be eight hundred dollars; so that both said there was a justfcause of complaint, and disagreed only as to the amount of compensation. But as to the injury done, the complainant succeeded in establishing it before both tribunals, and was, therefore, in fact, the successful party.
The company is, in our opinion, the unsuccessful party, within the meaning of the act of assembly, and is to reimburse to the county the daily pay and mileage of the jury. And we think, that the judgment, as to the daily pay .and mileage of the jury, should be affirmed, but reversed as to the complainant’s bill of costs.