
    Rose vs. Bolinger.
    Where the Circuit Court failed to give judgment for costs against the defendant, on the overruling a plea in abatement, it had the power to give such judgment on the final disposition of the case, and a refusal so to do is error.
    
      Sneed and Rodgers, for plaintiff in error.
    
      Peck, for the defendant in error.
   Green, J.

delivered the opinion of the court.

This cause commenced by warrant before a justice of the peace. The justice gave judgment for defendant, and the plaintiff appealed to court, where the defendant filed a plea in abatement. The jury upon an issue found against the plea in abatement; and the court adjudged that the defendant answer over, but gave no judgment for costs. Upon the trial on the merits, the jury found for the defendant, and the court adjudged that he should recover the costs which accrued after the plea in abatement was overruled, and that the costs which were incurred up to the time of overruling the said plea should be paid by defendant. From this judgment the defendant appealed to this court.

By the act of 1794, ch. 1, sec. 26, it is provided that full costs shall be recovered by the plaintiff against a defendant whose plea in abatement shall be overruled.

We think the failure of the court to give judgment for the costs, when the plea was overruled, does not prevent it from adjudging the costs according to law when the cause was finally disposed of. Let the judgment be affirmed.  