
    Guy against Wilkeson.
    In an action on the case, there was an award of arbitrators for 6 cents damages, from which the plaintiff appealed, and obtained a verdict for 5 dollars damages. Held, that although he was not entitled to recover more costs than damages, yet he was entitled to recover back the defendant’s costs, which he paid on the appeal from the award of arbitrators.
    ERROR to Mleghany county.
    This was an action on the case for defamatory words, in which James Wilkeson was plaintiff and Josiah Guy was defendant. The cause was arbitrated, and a report for the plaintiff for 6 cents damages, from which the plaintiff appealed and paid the costs of the defendant. The cause was tried in court, and a verdict for plaintiff for 5 dollars, and execution issued against the defendant for all costs, which the court (Shaler, president) set aside, except to the amount of the verdict and the defendant’s costs, which the plaintiff paid on his appeal, and these they permitted the plaintiff to recover.
    
      Fetterman, for plaintiff in error,
    contended, that the plaintiff was not entitled to recover back the defendant’s costs paid on the appeal; and cited, Gallatin v. Cornman, 1 Penns. Rep. 115; Ranking. Murray, 2 Penns. Rep. 74; Commonwealth v. Shannon, 13 Serg. & Rawle 109.
    
      Kingston, contra,
    contended, that it was not a recovery of costs by the plaintiff which they sought, but to prevent the defendant from recovering his costs, by compelling him to refund.
   Per Curiam.

The judgment was not for more costs than dam- . ages, but to prevent the defendant from virtually recovering costs, by retaining them, to which he is proved by the event not to have been entitled when he received them. He was therefore justly compelled to refund.

Judgment affirmed.  