delivered the opinion of the court, January 7th 1878.
The first six assignments of error refer to the instructions given in the general charge, and in answer to points submitted in relation to the right of the landlord to recover rent without having completed the improvements he covenanted to make, according to the terms of the lease. It is unnecessary to consider them seriatim. Taking some of them singly and alone, they might perhaps be sustained, but when considered in connection with the general charge and the leading facts of the case as therein stated, we are satisfied that the learned judge was correct, and that the case was fairly and properly submitted to the jury. They were instructed, inter alia, that if the tenant held and enjoyed the demised premises, the covenants on the part of the landlord to repair and make additions were minor and subordinate, and did not go, to the essence of the contract so as to defeat the rent in toto ; that he was not entitled to a verdict discharging him from all the rent, unless the premises, for the purposes for which they were leased, were worthless without such additions and alterations; that whatever damages the tenant sustained by reason of the landlord failing to perform his covenants might be deducted from the rent, and if these were equal to the entire rent, or in excess thereof, the tenant was entitled to a verdict.
We have not been furnished with the testimony in full, but in view of the facts as we gather them from the charge of the court, these instructions were substantially correct. The principle recognised in Obermeyer v. Nichols, 6 Binn. 159, has never been departed from in this state. That was an action of covenant for rent due on a lease in which the landlord had covenanted to make improvements. The court below charged the jury that the covenants on the part of the landlord w'ere minor and subordinate, and that the damages for their non-performance could be defalked against the rent. Chief Justice Tilghmaít, in delivering the opinion of this court, said it was for the court to construe the lease and decide whether the covenants to be performed by the landlord were of such a nature that, without the performance of them, there was no obligation to pay the rent or any part of it, and that the ruling of the court below was right, for the reasons that the entry of the tenant was to precede the acts to be performed by the landlord, and it was evident that the former would enjoy a considerable *538benefit from the lease independent of those acts, and that full justice was done, therefore, to the tenant when it was left to the jury to take into consideration the non-performance of the covenants, and deduct from the rent the amount of the injury which the tenant had sustained. Recognising the authority of the case, the learned judge very appropriately said: “ Every man’s feelings would revolt at the doctrine that a tenant should be suffered to occupy and enjoy the demised premises for a whole, year without making any compensation to the owner, on the ground that he did not make some trifling repairs according to the contract. All that the tenant ought to be allowed in such a case, is such a sum out of the rent as would be full amends for the loss and inconvenience he had been subject to by reason of the failure to complete such repairs, but not-to be discharged absolutely from all liability to his landlord,”
The case, in its different phases, as presented by the testimony, was fairly submitted to the jury, and, considering the charge as a -whole, including the answer to points submitted, the plaintiff in error has no just ground of complaint.
We discover no error in the ruling of the court as to the taxation of costs. In settling with and paying some of the defendants witnesses the plaintiff was a mere volunteer. It was the business of the defendant to pay his own witnesses. He was responsible to them for their per diem fees and mileage, and he had a right to have these taxed as part of his costs in the case. If the practice were sanctioned for either party to settle with the witnesses of his adversary,' the latter as well as the court would be drawn into unnecessary controversy and trouble in the taxation of costs. If such payment of witnesses and the production of their receipts were permitted to defeat taxation the winning party might be defrauded of his rights when he, himself, has paid his witnesses, or when double or treble costs are given by law. Such difficulties can be best avoided by recognising and enforcing, as the court did in this case, the right of each party to attend to his own affairs. As remarked by the court, in a proper case, when receipts of witnesses are filed by the losing party the court would so control the execution that the fees so paid should not be collected. This would be quite as full a measure of relief as a mere volunteer is entitled to.
The only remaining question is as to double costs under the Act of March 21st 1772, which provides that the defendant in replevin may avow and make conusance generally that the plaintiff enjoyed the land under a grant or demise at a certain rent; that the rent distrained for had accrued and was then and still remains due, &c.; and if the plaintiff or plaintiffs, in such action, shall become non-suit, discontinue his, her or their action, or have judgment given against her, him or them, the defendant or defendants in such replevin shall recover double costs of suit. This act is penal in its nature and should be strictly construed. Its purpose was doubtless *539to prevent vexatious resistance to the collection of rent, but was it intended to give the landlord double costs in cases where he dis-trains for more rent than he is entitled to ? When the plaintiff suffers a nonsuit, or discontinues, he thereby virtually admits that his resistance has been vexatious. So too, when the jury find, in favor of the defendant, the full amount of rent, specified in the avowry, the verdict impliedly convicts the plaintiff of vexatious litigation; but, not so when they find less. The plaintiff is then partially successful, and the verdict establishes the fact that the distress was excessive, and to that extent, at least, resistance was justifiable. It is true the act, in general terms, gives double costs when judgment is given against the plaintiff; but, judgment for for what ? Does it mean judgment for a mere fraction of the amount claimed by the landlord; or, is it not rather to be understood a judgment for the sum specified in'the avowry ?
As vras said in Waltman v. Allison, 10 Parr 464, the rent duo at the time of the distress must, according to the requirement of the statute, be specifically set out in the avowry. And is it not reasonable to infer that, in speaking in the same connection of judgment against the plaintiff, it means judgment for the amount so specified — the same that it would bo in the case of a nonsuit ? Keeping in view the object of the act, its penal character, and construing it strictly, no violence is done to the language employed by holding that a judgment to carry double costs must be co-extensive with the avowry; in other words, for the full amount claimed by the landlord, defendant. It is stated in the plaintiff’s history of the case, that he “ obtained a verdict in one of, the first cases, and the defendant a verdict in each' of the others, although the rent allowed him was much less than he avowed for, the jury, in each case, allowing the plaintiff damages for the defendant’s breach of the covenants of his lease.” This statement appears to be sustained by the record, the verdict in each case being less than the amount claimed and interest thereon, though, in some of the cases, the difference is but little. In view of this, wo are of opinion that, under a proper construction of the act, the plaintiff' was not liable to double costs. He resisted successfully, in part at least, a distress which the verdict proves to have been excessive.
The order of the court directing the taxation of double costs to the defendant is reversed and set aside, and the judgment is affirmed with single costs.
Merche, G-ordoet and Woodward, JJ., dissent from so much of this judgment as reverses the order for the taxation of double costs.