
    M‘Donald against Schell.
    
      Friday, October 20.
    March^isio, quires the payment of theenwyofan appeal, does Constitution, That part of the 11th section of the arbitration low rtf’ OftfVl
    In Error.
    WRIT of error to Bedford county.
    
      Samuel Ml Donald, a minor, by his guardian James M‘■Donald, brought an action in the Court below, for a malicious prosecution, against Jacob Schell, which was submitte¿ to arbitration under a compulsory rule entered by the defendant. The arbitrators on the 26th June, 1817, filed an awar¿ jn favour of the defendant, and on the 11th of the following July, James M‘Donald, made the affidavit required by the 11th section of the act of 20th March, 1810, which, together with the sureties required by the 12th section of the same act, he tendered to the prothonotary, and demanded as a constitutional right, that he should enter an appeal without the payment of costs, except for taking the recognisance and entering the appeal which he offered to pay. He at the same time appealed from the taxation of the bill of costs, on the ground that witnesses were charged for, who were not material, and who were subpoenaed merely for the purpose of swelling the bill of costs; and also, that adjournments had taken place at the instance of the defendant, the costs of which he was bound to pay himself. The prothonotary having refused to enter an appeal in consequence of the costs not being paid, the counsel for the plaintiff on the 9th of the ensuing August, obtained a rule to shew cause why he should not be allowed an appeal without the payment of costs; founding his application to the Court, on an affidavit of James McDonald, which stated the facts above mentioned, and also, that owing to misfortunes he was unable, within the term allowed by law for an appeal, to raise a sufficient sum to discharge the bill of costs, which he verily believed the plaintiff had swelled by subpoenaing unnecessary witnesses for the mere purpose of rendering it so high as to put it out of the power of the plaintiff to pay it, and obtain an appeal.
    The Court of Common Pleas after having heard the question argued by counsel, and held it under advisement for some time, discharged the rule, and directed judgment to be entered for the defendant. The plaintiff then sued out a writ of error.
    
      Thompson and Riddle, for the plaintiff in error,
    contended, that to deny an appeal until the payment of costs, which frequently amounted to enormous sums, and to embarass it with conditions with which a poor man could not comply, were effectually to deprive him of a trial by jury, and therefore a direct violation of the Constitution of Pennsylvania. He referred to Act of 20th March, 1810, 5 Sm. L. 135. 5 Sm. L. 416. Con. of Penn, of 1776, Ch. I. sect. 11,5 Sm. L. 425. Id. Ch. II. sect. 25. Emerick v. Harris, 1 Binn. 416. Con. of Penn, of 1790, art. 9. sect. 6. Purd, Dig. xxv.
    The Court declined hearing Todd, who was prepared to argue for the defendant in error.
   By The. Court.

There is so much business before the Court, that, they consider it their duty not to hear the counsel in whose favour they have formed an opinion.—The case now before us, is considered as hardly open to argument, because, the Court have heretofore decided that an appeal, under the act of assembly in question, cannot be entered without payment of costs. The law may undoubtedly, in certain cases, bear so hard on a poor man, as almost to deprive him of his appeal. But that will not justify the Court in deciding that the law is void. All general laws operate with severity in particular instances. The costs, although paid, are to be recovered again by the appellant in case he succeeds in his appeal: This case not being distinguishable from cases before decided, the Court are of opinion that the act of assembly ordering the costs to be paid, is not a violation of the Constitution, and therefore the judgment of the Court of Common Pleas should be affirmed.

Judgment affirmed.  