
    Brooks against Hunt.
    Where judgment is given for the defendant, on a demurrer, in an action of audita querela.) he is entitled to costs against the plaintiff, under the 12th section of the act. (Sess. 36. ch. 96.1 N. R. L. 343.)
    
      CADY, for the plaintiff, moved to amend the judgment record in this cause, by striking out that part of the judgment which awarded costs to the defendant. He said, that this was an action of audita querela, in which there was a demurrer, and judgment given thereon for the defendant, in August term last, with costs.
    He contended, that in audita querela, no costs can be recovered by either party: 1. Because, costs are only recoverable by statute ; and the statute (1 JV‘. R. L. 343. sess. 36. ch. 96. sec. 1, 2.) gives costs only in cases where damages are given. 2. Because audita querela is a suit in which no damages are recoverable by either party. It is purely remedial, and in the nature of a bill in equity. (2 Sellon’s Pr. 358. Dyer, 194.)
    If the defendant is entitled to costs at all, it must be under the 12th section of the act, which declares, “ That if any person shall prosecute in any Court of record, any action wherein, upon any demurrer by either party to the action, judgment shall be given for the plaintiff or demandant; or, if at any time after such judgment, the plaintiff or demand-ant shall sue any writ of error on the judgment, and the said judgment shall be affirmed, or the writ of error shall he discontinued, or the plaintiff non-suited therein, the defendant, in such action of writ of error, shall recover costs against the plaintiff or demandant, and have execution for the same as aforesaid.” The language of this section is somewhat ambiguous, and ought to he construed so as to harmonize with the first and second sections of the act ; otherwise, a defendant may recovercosts in a case iñ which no damages could be given, and the plaintiff, had he succeeded, could not have recovered costs, which could hardly have been the intention of the Legislature.
   Per Curiam.

The twelfth section of the act gives costs in all cases of demurrer; and though the general rule is, that costs are not recoverable, unless damages are given, we think, that the party is entitled, under this section of the act, to costs, as well as in any other case of a judgment on demurrer.

Motion denied.  