
    The Commonwealth against Woelper and others.
    
      Thursday, January 9.
    On informations in nature of a quo -warranto, at common law, where there is no relator, the Court cannot give judgment that the defendant shall pay costs; nor have they authority to declare that any part of the fines shall go to the prosecutors.
    Quo Warranto.
    IN this case, the Court had» at a former day in this term, rejected the motion for a new trial on this information; and passed sentence of ouster against the defendants, and adjudged that they should pay the costs.
    And now Levy, for the defendants, moved that the judgment against the defendants for costs should be set. aside, contending that no costs could be given.' In an information in nature of a quo warranto, at common law, there is no relator, nor ought there to be judgment for costs, but only a capiatur pro fine. Bull. N. P. 211. Rex v. Williams. There the information, in nature of a quo warranto, was held not to be within the stat. 9 Ann. c. 20.; and, therefore, there could not be a judgment that the relator should recover his costs, 1 Burr. 402. It is only by that statute the Courts have authority to give judgment that the relator shall recover his costs of prosecution; and if judgment be-for the defendant, that the defendant shall recover his costs against the relator. But that statute does not extend to Pennsylvania. Report of the Judges of the Supreme Court, 3 Binn. 599. The relator is not liable for costs beyond his recognisance. Sayre on Costs, 290.
    
      Binney, contra.
    It is of no moment whether costs are reached by a judgment or otherwise. The Court may inflict a fine under which costs may be recovered. The judgment that the defendant be taken to make fine for his usurpation, is to be'entered in addition to the judgment of ouster. 2 Kyd on Corp. 409; and is not taken away by the stat. 5 St 6 Will. St Mary, c. 12. 3 Bl. Com. 398, 9. He cited 6 Vin. 322. pi. 7. Gilb. Hist. C. B. 214, 215.
    
      Levy, in reply.
    The fine never exceeds six shillings and bight pence. Why should it be exceeded here ? At most there was an indiscreet act on the part of the defendants. What remedy for costs would the defendants have if the verdict had been for them ?
   Yeates J.

delivered the opinion of the Court. Tilgh31 an C. J. absent.

We are satisfied, from the cases cited by the defendants’ counsel, that on informations at common law, where there is no relator, the Court cannot give judgment that the defendant shall pay costs. What remedy would the defendants have for costs, if the verdict had passed in their favour ? We have certified to the legislature, that the stat. of 9 Ann. €. 20. has not been extended by our practice.

Our powers vary from those of the English Judges. Whatever fines we may think proper to lay on the defendants, must go into the public treasury, and we have no authority to declare that any part of it shall go into the pockets of those who have carried on this prosecution. The judgment already entered remains still under our controul during the term.

Let the judgment of ouster stand, and that part of it which subjects the defendants to costs, be expunged ;• and we further sentence each of the defendants in the information to pay a fine of 6s. 8d.

Judgment for costs expunged.  