
    [Pittsburg,
    September 19, 1827.]
    DEARTH and another against LAUGHLIN, Bail of LAUGHLIN.
    IN ERROR.
    By an appeal from the judgment of a justice,-the plaintiff does not forfeit the costs accrued before the appeal, though he recovers no more than he did before the justice.
    Error to the Court of Common Pleas of Fayette county.
    This was a scire facias sued out by the plaintiffs in error, Randolph Dearth and James Davis, against David Laughlin, bail of Adam Laughlin, upon a recognizance before a justice of the peace.
    The following case, to be considered as a special verdict, was stated for the opinion of the court:—
    
      Adam Laughlin recovered before a justice of the peace against the plaintiffs in error, who were the defendants in that suit, the sum of twenty-six dollars. From that judgment he appealed, and David Laughlin became his bail, and entered into the recognizance upon which this suit is founded, in the sum of fifty dollars, conditioned that the said Adam prosecute his appeal with effect; and, that if the judgment of the justice be affirmed, or if the said plaintiffs, in that action, should recover less than the judgment of the justice, the plaintiffs in that suit should pay all costs which had or might accrue, with four dollars as a counsel fee, and fifty cents per day, for every day the appellee should attend on such appeal; or that he, the said David Laughlin, the defendant in error, would on or before the first day of the next term, after the judgment, surrender the said Adam to the jail of the county, &c. Adam recovered in court the same sum of twenty-six dollars, which was recovered by him before the justice. The defendant in this action did not surrender the said Adam, &c., according to. the condition of the recognizance, nor hath the said Adam paid the costs which had accrued before the appeal. The plaintiffs in this action, who were the defendants in that, gave other evidence in court than they gave before the justice, as did also the plaintiff in that action, the said Adam Laughlin.
    
    Upon this, the court below rendered judgment for the defendant.
    Ewing, for the plaintiffs in error.
    
      Dawson, contra.
    
   Per Curiam.

By appealing, the plaintiff did no act which could have the effect of forfeiting his right to the costs accrued before the justice, which were vested by the judgment. The costs of the appeal depend on other considerations; but these were not claimed, and we cannot perceive any colour for the allegation of error.

Judgment affirmed.  