
    [Sunbury,
    June 24, 1828.]
    LAMB against CLARK.
    
      ÜS ERROR.
    The plaintiff is entitled to the costs on an appeal from the judgment before a justice,' for a sum due .the defendant, if on the appeal the judgment in the court is, that the plaintiff has no cause of action.
    Writ of error .to Tioga county.
    The plaintiff sued the defendant before a justice of the peace, who gave judgment on the award of referees, for twenty-mine dollars and eighty-six cents in favour of the defendant, and the plaintiff appealed. In the Court of Common Pleas, the cause was submitted to arbitrators, who awarded that the plaintiff had no cause of action. The plaintiff obtained, a rule to show causewhy the defendant’s costs on the.'appeal should not. be struck out of. the bill; but these costs were allowed by the court below; and this was assigned for error. .
    
      Mallery and Kinney, for the plaintiff.
    
      Lewis, for the defendant.
   Per Curiam.

The case of a plaintiff appealing from a judgment for a sum due to the defendant, is not expressly provided for in the act of assembly; but it is evidently .-within the spirit and meaning of the provision for an appeal by the defendant. • Such a plaintiff is precisely in the situation of a defendant, his antagonist having in turn become the assailant. It may be.said the plaintiff was originally in fault in suing for what wás not due; but that is no justification of the unjust claim of the defendant. The demerits of the parties before the justice" are exactly balanced. But the question is not, who was the original aggressor, but who was the efficient cause of these costs being incurred i'n the Court of Common Pleas. Undoubtedly, the defendant drove the plaintiff there, who, for aught that appears, would have been satisfied' to be left as he began, before the'justice. The plaintiff then, standing in the attitude of a defendant who has foiled his antagonist, is entitled to the costs in the Court of Common Pleas, ■

Judgment reversed, and judgment for the plaintiff for the costs of the appeal.  