
    Hulin against Rockwell and others. 
    
    NEW YORK
    May, 1823.
    In debt for $250, the penalty of articles of agreement, the defendants demurred to the declaration and had judgment against 'them; with leave to withdraw the demurrer, and plead on payment of costs. jHeld, that these should be supreme court costs, as on a judgment against the defendants, the nominal damages might be added, which would carry the sum over $250.
    It seems that final judgment on a plea to a declaration on a writing obligatory should not be for damages as such;, hut simply for debt and costs. Note (a)
    
    In debt for the penalty of $250 in articles of agreement. The defendants demurred to the declaration ; and had judgment against them on the demurrer, with leave to withdraw the demurrer, and plead on payment of costs.
    The question was submitted, whether these should be supreme court or common pleas costs.
    
      J. Bloore for the plaintiff,
    cited I. R. L. 343, *4, s. 1 & 4. He said these sections allowed supreme court costs where the principal recovery exceeds $250. In this case the nominal damages of six cents must be added. (2 John. Cas. 406, 409.)
    
      G. W. Kirtland, contra,
    cited 3 Cowen, 151 ; 1. R. L. 344; 2 Cowen, 412, 5 id. 424; 13 Johm Rep, 345.
    
      
      
         This case was decided October term, 1827.
    
   Curia.

The plaintiff is entitled to supreme court costs If the. penalty were more than $250, there would be no *doubt. To satisfy the statute in this case, the nominal , carnages may be added., 
      
      , (b) i. e. They "would be added, on the defendant’s having a judgment against ‘him, which, of course, must he the criterion as to" the rate of these interlocutory Costs 5 i. e, whether they shall' be S. C. Or C. P. costs. Had the judgment been perfected on the demurrer, the plaintiff would have recovered damages as such. (Trin. 11 Car. rot. 323, Book of judgments, 30.) But by the book of judgments, Trin. 44, Eliz. rot. 715, Oct, Hill. p. 158, damages distinct from costs are not given in a judgment for the plaintiff, on demurrer to a plea in bar to a declaration in debt On a writing obligatory 5 and so the Case Would be Within The People v. Haltett (4 Cowen, 67), which was final judgment in debt by default.
      N. B. The marginal note to the principal case was discovered to be Wrong after it had passed the press. It should read as upon demurrer to the declaration; and the clause stating the quart should be stricken out.
     