
    NATHAN STEWART, et al. against ELEAZER BALDWIN
    Costs are not recoverable by either party in an action of partition.
    Costs are exclusively a matter of statutory creation.
    Error to the Common Pleas of Tioga county.
    This was an action of partition brought by Eleazer Baldwin, against Nathan Stewart and John Bruce, in which the defendants plead non tenent insimul. The cause having been tried by jury, a verdict and judgment was rendered for the defendants.' A fi.fa. was then issued against the plaintiff for costs,'including a bill of defendants’ witnesses, amounting to two hundred and seventy-six dollars and ninety-seven cents.
    The plaintiff’s counsel obtained a rule to show cause why the ji. fa. for costs should not be set aside; on the ground that costs are not recoverable in an action of partition; which at a subsequent term was made absolute. The defendant then sued out this writ of error.
    
      Greenough, for plaintiff in error.
    A declaration in partition always concludes to the damage of the plaintiff. Plead. Asst. 304. If damages are recoverable so are costs. If then the plaintiff may recover costs, the Slat. 23, Hen. 8, gives costs to the defendant. Between coparceners damages in partition are not recoverable, but in other cases, where the right to have partition is denied, they are. 2 Bac. Ah. 45, 266. Stat. 17,Edw. 3, ch. 71.
    
    
      Parsons and Willeston, for defendant in error.
    No damages or mesne profits are recoverable in an action of partition, but may be in account render. 2 Bac. Ab. 44. Roberts’ Dig. 207. The Stat. 23, Hen. 8, has been restrained to cases of personal wrong. Penn’a Prac. 150. Sayer on Costs, title Coparceners. Commonwealth v. The Com. of Philad. 8 Se>’g. Sf Rawle, 155. Costs are never recoverable except by' statutory provision.
   Per Curiam.

We have inquired into the practice since the argument, without having ascertained that there has-been a departure from the provisions of the English statutes, according to which costs are not allowed in. partition; and however unreasonable this may be,-yet costs being exclusively a matter of statutory creation,, it is'plain that the remedy lies not with us, but with the legislature. The judgment for the defendant without costs was therefore regular.

Judgment affirmed.  