
    [Pittsburg,
    September, 12, 1825.]
    DOWNS against LEWIS.
    IN ERROR.
    On an appeal by the defendant from a justice of the peace, if the plaintiff recovers less on an award of arbitrators than he did before the justice, he is not entitled to costs nor can the arbitrators give them to him.
    
      Furman Lewis, defendant in error,
    brought this suit before a justice of the peace of Fayette county, against Jonathan Downs, and judgment was rendered by the justice in favour of Lewis, for eight dollars and twenty-five cents and costs. The defendant appealed, and being referred to arbitrators, they found for the plaintiff sixty-two and a half cents, and that the defendant should pay all the costs, and judgment was entered thereon.
    
      Irwin, for the plaintiff in error,
    now assigned for error the entering judgment for costs, inasmuch as the amount of the plaintiff’s judgment was reduced on the appeal. He referred to the act of the 00th of March, 1810, sec. 4. Lewis v. England, 4 Binn. Shaffer v. Landis, 4 Serg. & Rawle, 198.
    
      Ewing, contra.
    It is to be presumed in favour of the judgment, that new evidence was given by the defendant, because the arbitrators have given full costs. The cases cited are on appeal from the award of arbitrators: the present is an appeal from a justice, which is different. When the defendant appeals from a justice and reduces the plaintiff’s judgment by new evidence, he ought to pay the costs. Whart. Dig. 378. No. 124.
   Per Curiam.

This was an action brought by Furman Lewis, against Jonathan Downs, before a justice of the peace, who gave judgment for the plaintiff for eight dollars and twenty-five cents and costs. The defendant appealed to the Court of Common Pleas, where the cause was arbitrated, and a report returned in favour of the plaintiff for sixty-two and a half cents, and all costs. The error assigned is, in giving of costs, to which, it is contended, the plaintiff was not entitled, the defendant having succeeded in his appeal, so far as to reduce the sum which the plaintiff had recovered before the justice. The ease depends on the 4th sect, of the act of the 20th of March, 1810, and it is the opinion of the court, that there is nothing in that section which gives costs to the defendant. If the defendant had obtained costs, he must have shown, that on the hearing of his cause in the Common Pleas, he had produced no evidence which he had not exhibited before the justice. But it not a case of costs claimed by the defendant. The only question is, whether the plaintiff be entitled to costs. If he be not, the arbitrators had no right to give them. We are of opinion that the judgment should be reversed, so far as concerns the costs awarded to the plaintiff and affirmed for the residue.  