The opinion of the court was delivered, May 17th 1873, by
Mercuu, J.This was a sci. fa. sur recognisance. The plaintiff pleaded nul tiel record, and assigned eight reasons therefor. The court sustained the sixth reason, and entered judgment in favor of the defendant. A prior suit had been pending between the plaintiff and one Emerick, in which the plaintiff obtained an award before arbitrators. Upon the twentieth day thereafter Emerick paid to the prothonotary all the costs except the plaintiff’s bill, appealed from the award, and with Wilkinson, the present defendant, entered into a recognisance. That case was subsequently tried, and the plaintiff recovered a verdict and judgment for a larger sum than the award. Thereupon the plaintiff issued this sci. fa. upon the recognisance.
The ground upon which the court sustained the plea was, “ that *341the recognisance was illegal, as was the appeal; because the former was taken, and the latter entered, without the payment of accrued costs.”
It is true one of the requirements of the statute to perfect an appeal from the award of arbitrators is that all the costs that may have accrued in the suit shall be paid. This fact, however, cannot be inquired into under the plea of nul tiel record. The writ of scire facias is not set forth in the paper-book, yet it is no part of the writ to recite the amount of costs that had accrued prior to the appeal, nor to aver anything in regard to their payment or non-payment. This plea merely puts in issue the existence of the record as recited in the writ, and therefore is proper only where there is either no record at all, or one different from that upon which the plaintiff has declared: 1 Chit. Plead. 485; Burkholder v. Keller, 2 Barr 51. The non-payment of a part of the costs was not admissible in evidence under the pleadings. It did not contradict the existence of the record as recited, nor that it differed therefrom. This plea puts in issue nothing but the recognisance, the rest being merely inducement; and if the variance is material it should be specially pleaded: Cooper v. Gray, 10 Watts 442.
When the taxed costs have not all been paid, through the fault or negligence of the party appealing, the appeal may be stricken off upon the application of the opposite party; but where their non-payment is caused by the exclusive fault of the officer in withholding the knowledge of the existence of a portion of them, the payment of the omitted portion should be enforced by attachment: Fraley v. Nelson, 5 S. & R. 234; Carr v. McGovern, 16 P. F. Smith 457.
If, however, no objection is made to the irregularity of the appeal, and the party appealing effects his object by securing another trial, it is then too late for him or his surety to interpose such an irregularity as a bar to a recovery upon the forfeited recognisance.
The ground of which the learned judge predicated his action being untenable, and being unable to discover in the other reasons assigned to sustain the plea any cause to sustain the judgment, it must be reversed.
Judgment reversed, and judgment is entered in favor of the plaintiff.