¶1It is a long established rule of law, that the demandant, in a real action, neither recovers, nor pays costs, because he recovers no damages; (10 Co. 116; 1 H. Bl. 11, 12; 7 Term Rep. 268;) and therefore, although he is liable to judgment, as in cases of nonsuit, for not proceeding to trial, yet in that case, he pays no costs, because the act only gives costs in cases where the plaintiff, upon nonsuit, would be entitled to them. (2 Black. Rep. 1093; 1 B. & P. 104.) But, in many cases, the courts interpose and relieve upon certain terms, which they, in their discretion, may impose. One of these usual terms, is the payment of costs. Costs, in such cases, do not depend upon any statute, but upon the equity and discretion of the court.
¶2Putting off a trial, for the absence of a witness, is an instance of costs being imposed, as a consideration of the rule, (1 Salk. 38,) and no doubt, a tenant, in a writ of right would be obliged to comply with the consideration, as he is, equally with any other defendant, within the equity of the rule. The case of amendments, (2 Cromp. 458,) may be mentioned' as another instance of costs being imposed, as a condition of the favor, and to which the party applying must conform whether he be party to a real or personal action.
¶3The present caséis of asimilar kind. It is not long since, that the court adopted the rule not to nonsuit for the first default, in not proceeding lo trial, according to the *courseof the court, provided, the plaintiff would stipulate to try the cause at the next circuit, or be non-suited. (See 2 H. B1.119. 1 Bos. & Pull. 38.)
¶4But the payment of costs, for not proceeding to trial, was very soon added, as an equitable condition of the indulgence until another circuit; and the payment of costs, for the default. at the preceding circuit, and of the motion, is now consideied as a matter of course.
¶5We are of opinion therefore, that the demandant can only bo admitted to his stipulation, upon the usual terms of payment of costs; and that he ought to pay them, otherwise judgment may be entered against him, as in cases of nonsuit, nunc pro tunc.