Majority
p. 113Peck ads. Phillips. but opposed the application for costs, on the ground, that no costs are recoverable by law in real actions.
Headnote
RADCLIFF, for the tenant in a writ of right, moved, that the demandant, having noticed the cause for the last circuit, and having omitted to bring it on, should stipulate to try at the next circuit, or that judgment of nonsuit be entered for not having tried it at the last, and also that the demandant, in the event of his stipulating, pay costs of the last circuit and of this motion, since the continuance is matter of indulgence to him. 2 Cromp. Pr. 468, 9. 2 Black. Rep. 1110 .Harison agreed to stipulate,
The allowance of costs in this case does not depend on any statute, but upon the rules and practice of the court, merely. It is, of course,
p. 114
discretionary. As the tenant is strictly entitled to judgment as in cases of nonsuit, and the demandant, to avoid it, applies for the benefit of another rule of court, by offering to stipulate to try his action at the next circuit, we think we ought to impose on him the terms of paying the costs already accrued, for not proceeding to trial according to his notice. We ought not to grant him a favour, .by allowing him to make this stipulation, and thereby escape the consequence of his default, without requiring him to reinstate the opposite party, and place him in the condition he was, by paying costs.
Motion granted.