
    [Pittsburg,
    September 28, 1827.]
    FLICK and another against BOUCHER.
    IN ERROR.
    If, on an appeal from the judgment of a justice of the peace in favour of the plaintiff, the case is arbitrated, and an award is made in favour of the plaintiff for the same sum, on which an appeal takes place, and, on the trial, the plaintiff is nonsuited, the defendant having given no evidence, the defendant is entitled to costs.
    On a writ of error to the Court of Common Pleas of Somerset county, it appeared', that Jacob Flick.and John Mason, the plaintiffs in error, sued Polly Boucher, the defendant in error, in trover, before a justice of the peace of that county, who gave judgment for the plaintiffs for ten dollars damages, and costs of suit, to be released on delivery of the note, and payment of costs. The defendant appealed, and the plaintiffs arbitrated the case in the Court of Common Pleas, and obtained an award in their favour for ten dollars, with costs. The defendant appealed again, and issue being joined on non-assumpsit, infancy, and payment with leave, the plaintiffs suffered a nonsuit on the trial, no evidence being given by the defendant. The plaintiffs moved the court to enter the judgment for the defendant without costs, which the court refused to do.
    
      Todd, for the plaintiffs in error.
    The recognizance before the justice does not follow the proceedings through all the succeeding stages, 12 Serg. & Rawle, 24: the subsequent recognizance entered into before the arbitrators supplies its place, after the proceedings have gone that far. Suppose judgment before a justice for fifty dollars; judgment of arbitrators for sixty, and verdict for fifty-five, how can the provisions of the two acts be rendered consistent? The matter must be referred to the appeal from the arbitrators, and be determined by the provisions of the arbitration law; and it is clear by that, that the party reverses the judgment at his own costs. Shaeffer v. Landes, 4 Serg. & Rawle, 196. In such case no costs are given on the appeal.
    Kennedy, contra.
    
    There is no analogy between the two laws. It was not intended that the second recognizance should be an ex-oneretur of the first. By a reversal, the defendant, according to the first, is to recover costs; on the second', the amount is only to be abated. The recognizance before the justice has reference to the judgment of the Court of Common Pleas. The costs of the arbitration may depend on rules peculiar to itself. But the costs in court, are to depend on the provisions of the act giving jurisdiction to the justice.
    
      Forward, in reply.
   The opinion of the court was delivered by

Gibson, C. J.

The costs of an appeal from the award of arbitrators are regulated by the arbitration act only; in which it is provided, that the defendant, when he is the appellant, shall give security to pay the costs, on condition that the plaintiff ££ shall obtain a judgment for a sum equal to, or greater than the report of the arbitrators:” but no provision is made for costs where the plaintiff shall not obtain such a judgment. Hence, in Shaeffer v. Landes, (4 Serg. & Rawle, 196,) it was held the plaintiff shall not recover costs, because the defendant has not forfeited his recognizance; and the defendant shall not recover costs, because there is no law which gives them. The case of a successful appeal from the award of arbitrators is not provided for, and the court could not give costs to either. How stands the case of a successful appeal from the judgment of a justice? The arbitration act, and the one hundred dollar act, were undoubtedly intended to be consistent in their provisions respecting appeals; and it is our duty to construe them, where we can, so as to give effect to all the provisions of each. Now, although this cause has been arbitrated in the Court of Common Pleas, and a second time carried by appeal before the court, it must be admitted that the arbitration act contains no provision for the costs. Then, that act being out of the way, what is there to prevent us from applying the provisions of the one hundred dollar act, which are particularly adapted to the ease of an appeal from a justice? By these it is declared that on the reversal or abatement of a judgment, the defendant, when he is the appellant, shall recover costs if he has produced to the court and jury no other evidence than what he exhibited before the justice; and, as it is not pretended that the appellant produced new evidence here, she is clearly entitled to costs.

Judgment affirmed.  