Flick v. Boucher

[374] The opinion of the court was delivered by Gibson, C. J. The costs of an appeal from the award of arbitrators are regulated by the arbitration act only; in which it is provided, that the defendant, when he is the appellant, shall give security to pay the costs, on condition that the plaintiff ££ shall obtain a judgment for a sum equal to, or greater than the report of the arbitrators:” but no provision is made for costs where the plaintiff shall not obtain such a judgment. Hence, in Shaeffer v. Landes, (4 Serg. & Rawle, 196,) it was held the plaintiff shall not recover costs, because the defendant has not forfeited his recognizance; and the defendant shall not recover costs, because there is no law which gives them. The case of a successful appeal from the award of arbitrators is not provided for, and the court could not give costs to either. How stands the case of a successful appeal from the judgment of a justice? The arbitration act, and the one hundred dollar act, were undoubtedly intended to be consistent in their provisions respecting appeals; and it is our duty to construe them, where we can, so as to give effect to all the provisions of each. Now, although this cause has been arbitrated in the Court of Common Pleas, and a second time carried by appeal before the court, it must be admitted that the arbitration act contains no provision for the costs. Then, that act being out of the way, what is there to prevent us from applying the provisions of the one hundred dollar act, which are particularly adapted to the ease of an appeal from a justice? By these it is declared that on the reversal or abatement of a judgment, the defendant, when he is the appellant, shall recover costs if he has produced to the court and jury no other evidence than what he exhibited before the justice; and, as it is not pretended that the appellant produced new evidence here, she is clearly entitled to costs. Judgment affirmed.