
    Mixell against Bradford.
    Under the act of 29th March,. 1810, the Supreme Court cannot on a writ of error inquire, whether new evidence was given by the defendant on appeal, so as to preclude the plaintiff from costs, -
    The Court below are judges, whether new evidence was given or not.
    In Error.
    ON an appeal from, an award of referees, and judgment thereon of a justice of the peace to the Court of Common Pleas of Somerset county, the plaintiff recovered less by the verdict of the jury than he had recovered before the justice. The plaintiff took out an execution, which was set aside by the Court of Common Pleas so far as respected costs, the question whether the plaintiff could recover costs being fully discussed..
    It was now assigned for error, that the defendant ought to have proved, that he had 'given no other evidence in the .Court of Common Pleas than before the arbitrators, agreeably to the. act of assembly of March 20th, 1810.
   Per Curiam.

The Court below are the judges, whether •new evidence was given or not, and it appears, that they did make a special decision on the subject of costs. This Court cannot inquire into the fact of new evidence being given or not. When the Court below decided, that the defendant should recover costs, their judgment was founded on the fact, that no new evidence had been given by the defendant. We see no error in the record, and therefore the judgment must he affirmed.

Judgment affirmed.  