
    Landis against Shaeffer.
    Monday, May 25.
    "W hen upon an appeal by the defendant from an award of arbitrators, the verdict of the jury is for a less sum than the award, the plaintiff js not entitled to recover the costs accruing upon the appeal.
    In Error.
    WRIT of error to the Court of Common Pleas of Lancaster county.
    
      John Shaeffer, the plaintiff below,
    brought an action against Abraham Landis, the defendant, for erecting a dam on his own land, in consequence of which the waters of Cocalico creek were interrupted in their course, and thrown back on the land of the plaintiff. The action was referred to arbitrators, who awarded damages to the plaintiff in the sum of 400 dollars. The defendant appealed, and the cause having been tried in the Court of Common Pleas of Lancaster county, a verdict was given for the plaintiff, with six cents damages and six cents costs. A motion was made in the Court below, on the part of the defendant, that judgment be entered for the plaintiff without costs accruing since the appeal, on the ground, that as the verdict was for a less sum than the arbitrators awarded, he was not entitled to costs. But the Court overruled the motion, and entered judgment for full costs. This was the error complained of.
    
      Buchanan, for the plaintiff in error,
    observed, that the rule the Court were about to establish was in the highest degree important, because it must be applied to cases of contract as well as tort. The common law allowed no costs, and the statutes giving them being penal in their nature are to receive a strict construction. 6 Bac. Ab. 390. Stat. 9. Salk. 205; Cas. Temp. Hardw. 337. The arbitration law of the 20th March, 1810, introduces a new system of costs which renders any argument deduced from the statute of Gloucester inapplicable.- The-12th, 13th, and 14th sections of that act establish a complete set of rules relative to costs on appeals, whether by plaintiff or defendant.. If the appeal be entered by the defendant he is required by the 14th section to give security, that if the plaintiff in the event of the suit shall obtain a judgment for a sum equal to or greater, or a judgment as, or more, favourable than the report of the arbitrators, he shall pay all the costs that may accrue in consequence of the appeal. This language plainly indicates the intention of the legislature to have been, that the defendant should not pay such costs, if the plaintiff recovered less than was awarded by the arbitrators. The recognisance prescribes the limits within which the payment of costs is to be confined; for it would have been absurd not to make the security commensurate with the right intended to be secured. The act of assembly has followed the principle which has always prevailed in relation to the reversal of judgments, which is, that no costs are to be recovered on either side. A defendant, who upon an appeal obtains a verdict more favourable than the report of the arbitrators, reverses their judgment, and therefore is not liable to the costs which accrue upon the appeal. The case of Lewis v. England,
      
       which settles the law on an act of assembly very similar to this, in which the recognisance of the defendant is to the same purport, -must have great influence in the decision of this case.
    
      Porter and Hopkins, for the defendant in error,
    contended, that as the verdict of the jury as well as the award of the arbitrators had proved, that the plaintiff had a good cause of action, the rule which threw the costs upon the party who was in fault, authorised them to be recovered, in the present instance, of a defendant, who for a number of years had kept the plaintiff at law. The statute of Gloucester, 6 Edw. 1. c. 1. they said, gave costs in all cases in which damages were recovered, and unless it has been repealed by the arbitration law, it is in force here. On a writ of error, where the judgment is affirmed costs are recovered, though the rule of this Court is, that on the reversal of a judgment each party pays his own costs. Here the judgment of the arbitrators has been affirmed, so far at least as respects a cause of action, and to throw the costs of an appeal upon a plaintiff under such circumstances would operate very hardly upon him, and be productive of highly injurious consequences, for a defendant by lying by and not producing his evidence before the arbitrators, maybe almost certain of procuring an abatement of damages. The 14th section of the arbitration law which directs the form of the recognisance, does not, it is true, mention this as one of the cases in which the defendant shall pay costs; but it does not follow, that costs are not to be paid, because no security is ordered to be given for them. All that can be said ^at the recognisance is not co-extensive with the injury. The jury had unquestionably a right to give costs, and when they assessed them at six cents, they intended to give full costs. The case of Lewis v. England, was a decision on the law relative to justices of the peace, the proceedings before whom, form a separate system, and therefore it can throw no light on this question.
    
      
       5 Sm. L. 135, G.
    
    
      
      
         4 Sinn, 5.
      
    
   The opinion of the Court was delivered by

Tilghmcan C. J.

Our legislature has .introduced a new mode of trial. Either party may, in the first instance, carry the cause before arbitrators, and when they have decided, either party may appeal to the Court of Common Pleas, where there is a trial by jury, in the usual manner. The appeal is subject to certain conditions, one of which is, that the appellant shall enter into a recognisance, with sureties, for payment of the costs of the appeal, according to the regulations of the act of 20th March, 1810, S Sm. L. 131. In the 12th section of this act, it is enacted, that if the plaintiff be the appellant the condition of the recognisance shall be, “ that if the said plaintiff shall not recover, in the event of the suit, a sum greater, or a judgment more favourable than the report of the arbitrators, he shall pay all costs that shall accrue in consequence of said appeal, and one dollar per day,, for each and every day lost by the defendant, in attending on such appeal, which costs and daily pay shall be taxed and recovered, as costs in other cases are recovered.” In the 11th section it is provided, that no appeal shall be allowed, until the appellant pay all the costs that may have accrued before the appeal, and the appellant shall not be permitted to produce as evidence in Court, any books, papers, or documents, which he shall have withheld from the arbitrators. The 13th section declares, that the costs paid by the appellant on entering his appeal, shall be taxed in his bill, and recovered of the adverse party, in such cases only, where, in the event of the suit, the appellant is entitled to costs agreeably to the provisions of that act. The 14th section is the one which bears on the point before us; it enacts, that if the defendant be the appellant, the condition of the recognisance shall be, “ that if the plaintiff in the event of the suit shall obtain a judgxnent for a sum equal to, or greater, or a judgment as or more, favourable than the report of the arbitrators, the said defendant shall pay all the costs that may accrue in consequence of said appeal, together with the sum or value of the thing awarded by the arbitrators, with one dollar per day for each and every day that shall be lost by the plaintiff in attending to such appeal,” &c. We have in these sections, a complete system of costs, of which the governing principle is, that the appellant shall pay costs unless he succeeds, at least partially, in the appeal. If the plaintiff appeals, he pays' costs, unless he recovers more than the arbitrators gave him. If the defendant appeals, he pays costs, unless he obtains an abatement of what the arbitrators gave the plaintiff, because in both those cases it must be presuméd, that there was no cause for the'appeal. But, although the party who succeeds but partially-in his appeal, ought not to pay costs, yet it does not follow that he ought to recover costs ; because, although the event has proved, that the award of the arbitrators was wrong, yet that may have been the fault of the arbitrators, and not of the party in whose favour the awarid was made. In such cases, therefore, each party is left to pay his own' costs. That is the principle which prevails in the common law courts ; for, where a judgment of an inferior Court is reversed on a writ of error, the costs in error are not recovered by the party who obtains the reversal. But, where the judgment is affirmed, costs are recovered.' ’ On an appeal from arbitrators the law considers their report as reversed, where the judgment of the Court of Common Pleas is more favourable to the appellant than the report was. Indeed, it is a reversal strictly speaking ; for the act of assembly makes the report, when filed in the office of the prothonotary, equal a judgment, and it has been determined to be a judgment on which a writ of error lies. But it is argued for the plaintiff, that it is extremely hard he should not recover costs, when he has established his cause of action ; and that he is entitled to costs, because the statute of Gloucester gives them, in all cases where damages are recovered, and the act of assembly has not repealed the statute. With the hardship of the case, the Court has nothing to do. But if the matter is fully considered, there are hardships on both sides; for the defendant may certainly complain of hardship, in being obliged to pay costs, for áppealing from a judgment which he has proved to have been, wrong. The only question, however, is, what is the meaning of the act of assembly ? Of its meaning I have no doubt. When it orders the appellants to give security to the adverse party, it must have been intended chat security should be given for every thing which the adverse party could be entitled to recover. Now, so far as respects costs, the security is for the payment of costs, only in case the plaintiff shall obtain a judgment for a sum at least equal to the report of the arbitrators. To say, that the recognisance for payment of costs, was not intended to be co-extensive with the costs, would be to charge the legislature with an absurdity. Whatever inconveniences, therefore, may attend this construction, (and I am sensible, that an artful defendant, who lies by, and does not produce all his evidence before the arbitrators, may involve the plaintiff in great difficulty, particularly in actions of tort,) yet as the intention of the law is clear, we must not hesitate to adopt it. I am of opinion, that the plaintiff was not entitled to recover the costs of the appeal in this case, because the the verdict of the jury was for a less sum than the report of the arbitrators. The judgment should be reversed therefore, so far as respects the costs, and affirmed for the residue.

Judgment reversed, as respects the costs, and affirmed for the residue.  