The opinion of this court was delivered by
Bell, J.The case of Remely, to the use of Kraus, v. Kuntz, *27810 Barr, 180, determines, that since the acts of 1842 and 1845, the plaintiff is entitled to his costs, which accrued since the appeal from the award of arbitration, notwithstanding he recovered by verdict a less sum than was awarded by the finding of the arbitrators. The Court of Common Pleas was therefore wrong in refusing him these costs.
But is he also entitled to recover the costs which accrued in this court on the writ of error sued out by him ? At common law there were no costs in error. They were first given by the statute 3 Henry, 7, cap. 9, against defendants, who sued out a writ of error, when the judgment was affirmed, the writ of error discontinued, or the party became nonsuit. This statute was affirmed by the 19 Henry 7, cap. 20. Next followed the 13 Car. 2, cap. 2, which gave to defendants in writs of error double costs, on an affirmance of the judgment below, and the 8 and 9 Wm. 3, cap. 11, by which it was enacted, that after judgment for a defendant, if the plaintiff or demandant sued out a writ of error, and the judgment should be affirmed, or the writ discontinued, or the plaintiff become nonsuit thereon, the defendant should have judgment to recover his costs against the plaintiff or demandant. All those acts are reported to be in force in Pennsylvania; but none of them cover this case, and I know of no enactment of our own on this subject. The plaintiff is, consequently, not entitled to the costs in error. Indeed, it would be inequitable to give them in a case like the present, where the plaintiff, dissatisfied with a judgment in his own favour, appeals to this court without success. "Why should he make the defendant pay for the experiment ?
Judgment reversed, and .it is ordered that judgment be entered for the plaintiff on the verdict, with full costs which aecraed in the Court of Common Pleas, and upon this writ of error; but that he do not recover the costs which accrued under the writ of error, first sued out by him in this case.