
    [Sunbury,
    July 2, 1827.]
    SANNER against COOK’S Administrators.
    in error.
    If a defendant, on appealing from the judgment of a justice, calls new witnesses, though it be to establish the same facts he relied on at the former trial, he loses his costs on the appeal, though successful.
    He must, in such case, pay the costs accrued before the justice.
    Error to the Court of Common- Pleas of Northumberland county.
    
      Sanner, the plaintiff in error,
    sued Cook in debt before a justice of the peace. The justice gave judgment for the plaintiff. The defendant appealed, and on a reference to arbitrators, there was an award, not only reversing the judgment of the justice, but finding a balance due from the plaintiff to the defendant, Cook. It appeared that Cook, before the arbitrators, made the same defence which he had made before the justice, produced the same set-ofij and relied upon the same facts; but he brought forward, and examined witnesses whom he had not produced before the justice. Sanner thereupon moved the court below, for a rule to enter judgment on the award, zoithout costs, relying-upon the fourth section of the act of the 20th of March, 1810, that, on the reversal or abatement of the amount of the judgment of the justice, the defendant appealing shall be allowed his <?osts, &c., only in case he produces no evidence before the court other than that which he exhibited before the justice. This rule was denied by the court below, and that denial was now assigned for error. ■
    After argument by Greenough for the plaintiff in error, and S. Hepburn for the defendant, the opinion of the court was given by ’ ,,
   Tod, J.

We take the rule to béj'that the appellee is exonerated from the payment of costs to the successful party, not only by the production against him of new facts on the second trial, but also by the production of new evidence of the same facts. The intent of the act of assembly appears to have been, by this forfeiture of costs, to prevent vexatious appeals, in cases in which a party otherwise, by withholding the'strength of his evidence, would be sure to obtain, on appeal, a reduction of the amount of the judgment against him. .Clearly, a party may rely upon the same facts, and yet make out a new case altogether, by producing new witnesses,or new documénts. It is not every small or accidental variance of proof, that will* in a case like this, discharge the appellee from costs. But the general rule is, that if the appellant adduces new evidence to strengthen the grounds he before relied on, he loses his right to costs under this act of assembly. Nor can an inquiry be entered into whether the proof on. the second trial is stronger than on the'first. The court can have no means of deciding what effect the fresh evidence has had upon the minds of the arbitrators, or of the jury. Another point in this cause, is decided by the case of Kimble v. Saunders, 10 Serg. & Rawle, 193.- The plaintiff in error recovers his costs accrued before the justice. Each party must pay his own costs on the appeal.

; Judgment reversed,.and to be entered for the defendant below, without costs accrued since the appeal.  