
    [Sunbury,
    
      June 27, 1825.]
    
    POKE and another, against KELLY, Assignee of CASE.
    IN ERROR.
    In debt on bond for tiie purchase money of land, where the defence was, that the land was incumbered, and the plaintiff had covenanted to warrant the title, arbitrators were appointed, who awarded the whole sum to the plaintiff. The defendant paid off part of the incumbrance before the award, and part after: on appeal, verdict and judgment were rendered for less than the award, the amount of the incumbrances being deducted by the jury: held, that the plaintiff was not entitled to the costs accrued after the appeal.
    Incumbrances, though not paid off by the defendant, are a good defence to tho amount in an action on the bond for the purchase money.
    Debt in the Court of Common Pleas of Northumberland county, brought by the defendant in error, the plaintiff below, David Kelly, assignee of John Case, against the plaintiffs in error, Thomas Poke and Christopher Andrews. The suit was to April term, 1818, on a bond dated the 29th of December, 1S15, for four hundred dollars, conditioned for the payment of,two hundred dollars on the 1st of April, 1818, with interest from the 1st of April, 1817. The case was arbitrated, and on the 13th of June, 1818, an award was made in favour of the plaintiff for the sum of two hundred and fourteen dollars* foi’ty-fiye cents, from which the defendants appealed. The defendants pleaded, that the bond was in part the consideration of a tract of land for which the plaintiff, by articles of agreement, dated the 9th of October, 1815, covenanted to give them “a good sufficient warranty deed,” &c., but never did so; on the contrary, he left the land subject to a mortgage, dated the 7th of May, 1814, to Godfrey Rockyfeller, for throe hundred and twenty-six dollars, sixty-seven cents, by recovery of which the defendants became liable to pay, and.did pay on the 30th of June, 1817, two hundred dollars; and, on the 19th of Jlpril, 1819, one hundred and sixty-seven dollars, fifty-six cents, and twenty-one dollars, forty-four cents, costs of suit on the said mortgage.
    The plaintiff replied, non solvit, and specially replied, that the defendant knew of the mortgage when he gave the bond; and that the defendants have since assignment acknowledged the debt and promised to pay part, and this, the plaintiff prays, may be inquired of by the country, &c. On the 30th of oSzigust, 1890, a verdict Was rendered for the plaintiff for forty-one dollars, sixty-two cents, and judgment. On a rule to show cause why judgment should not be entered without costs, the court below discharged the rule.
    The plaintiffs in error now assigned for error the entry of the judgment for costs, contending that they were not recoverable, 1. Because the defendant succeeded by the verdict in reducing the amount of the debt below the sum given to the plaintiff by the award. 2. The plaintiff recovered less than one hundred dollars.
    
      Bellas, for the plaintiffs in error.
    
      Greenough, contra.
   The opinion of the court was delivered by

Duncan, J.

The arbitrators reported in favour of the plaintiff, two hundred and fourteen dollars, fifty cents. The defendants appealed, and there was a verdict for him only of forty-six dollars and sixiy-two cents, and judgment was entered for full costs. The error assigned in the second specification, that the plaintiff recovered less than one hundred dollars, and so is not entitled to any costs, is obviated, — because there was an affidavit, filed previous to the commencement of the action, of the plaintiff’s belief, that it exceeded that amount. The defence was, — failure of consideration, for that the land, for the purchase money of which the bond was given, was subject to an incumbrance, and it appears that the jury had deducted the amount of that incumbrance, which the arbitrators had not done. The plaintiff, therefore, did not recover in the event, a sum equal to, or greater, or a judgment more favourable than the award; and, having recovered a less sum, he was not entitled to any costs subsequent to the appeal. Landis v. Shaffer, 4 Serg. & Rawle, 196. For when the act of assembly ordered the appellant, on entering his' appeal, to give security to the adverse party, it must be intended a security commensurate with all the cost^.he could possibly recover. Now, the security required is only foi* payment of costs, in case the plaintiff shall obtain a judgment for a sum at least equal to the award. Though in some eases this provision may operate hardly, on a plaintiff, yet it could not do so on this plaintiff, ff'he mortgage was a notorious recorded nlatter,/and there was a covenant, that “there should be a sufficient warranty deed.”

,It is urged,'in support of the judgment, that the defendants did not pay off the incumbrance until after the appeal. It matters not when they paid it. The land was-liable to it. It was a satisfactory defence, "when the action was brought, and under the plea of payment with leave, &c. was a payment in equity of so much money. What evidence was given before the arbitrators, we know not; but as the incumbrance was the sole defence, it would be a strained and most unnatural conclusion, contrary to all probability, that this was not the defence before the arbitrators. The just conclusion is, that the arbitrators acted on the erroneous opinion, that until the defendants paid the mortgage, they were not entitled to deduct it.

I am, therefore, of opinion, that judgment should be reversed for the eosts which accrued subsequent to the appeal, but should stand affirmed for the debt and costs which accrued before the appeal.  