in this case was recovered before the justice, for 97 dollars 31 cents, on which, the defendant below, the plaintiff in certiorari, appealed to the Common Pleas. The Common Pleas, on hearing the cause, reversed the judgment of the justice, and thereupon rendered a new judgment for the plaintiff for 65 dollars 93 cents, with the costs of the appeal.
It appeal’s to me, that neither the act of Assembly authorizing appeals, nor the reason or justice of the case, will justify *263a judgment in the Common Pleas for costs against the defendant in that court under [*] the circumstances of this case. He is actually the successful party. The plaintiff held against him a judgment not founded in justice; he was compelled to appeal to the Common Pleas to have that judgment corrected. Shall he then pay costs to his adversary on this appeal ? The more reasonable rule would be, that his adversary pay costs to him; but I believe the practice in such cases has been for neither party to recover costs; founded, I presume, on this principle, that the error in the judgment of the justice, is an error of the court, and not the fault of the plaintiff. If, therefore, I am correct, that no costs can be recovered in this case, the judgment of the Court of Common Pleas must be reversed as to costs, and affirmed as to the debt. As no judgment for costs ought to have been rendered, the judgment for costs must be considered a separate distinct judgment from the debt, and comes, in my opinion, within the cases where the judgment may be reversed in part, and affirmed in part. 4 Bur. 2121, 1 Stra. 189, 8 Lord Raym. 870.
The remainder of the judges assenting to this opinion, the judgment was Reversed.
Cited in N. J. R. R & Tr. Co. v. Suydam, 2 Harr. 25; Cheeseman v. Cade, 4 Zab. 632.