The question of costs presented by this record is directly decided against the defendant, by the case of Hoffman v. Slossan, 2 Watts & Serg. 36; and that determination is in accordance with the earlier cases, which arose under the act of 1810, and which turn upon the principle that, where, by the conditions of the appeal, the appellant is to pay 'costs only in the event of his failing to procure a more favourable judgment than that appealed from, he is not bound to pay the costs of the appeal, should he succeed in placing himself in a better position, though a final judgment is eventually recovered against him.
. The only distinction between that case and this is, that here there was an award in favour of the plaintiff, from which the defendant appealed. But this fact can work no difference in the decision of the question, for the arbitration act failing to provide, specifically, for the payment of costs, in the event that has happened in this instance, the case is left to be governed by the statutes which regulate appeals from justices of the peace, as is shown by Landis v. Shaeffer, 4 Serg. & Rawle, 196; Flick v. Boucher, 17 Serg. & Rawle, 373; and Wisler v. Beaumont, 4 Watts, 29.
The judgment of the court below in favour of the defendant, for the costs of the appeal, is, therefore, reversed; and it is ordered that judgment be entered for the defendant, together with the costs of suit, which accrued before the appeal from the judgment of the justice.
Judgment accordingly.