
    [*] WATERS against VAN WINKLE.
    .Costs in Common Pleas, and of reversal of their judgment of nonsuit, refused to defendant upon a judgment in his favor, on venire de novo.
    
    This was a question of costs, submitted to the court without argument.
    Waters brought an action of trover in the Common Pleas of Essex; and on the trial below, was nonsuited; on which, he brought a writ of error to this court, and this court reversed the judgment of the Common Pleas; and on his motion, the court awarded a venire de novo
      
       The cause was tried, and verdict and judgment for the defendant. The defendant, on the ground of having eventually succeeded, insisted on the costs below, and the costs of reversal.
    
      
      
        State Hep. 567.
      
    
   Kirkpatrick, C. J.

Costs are strieti jwris. It would seem reasonable that the plaintiff in error, upon the reversal of the judgment against him, should recover costs; because he has been put to costs and expenses in procuring a reversal of an unlawful judgment. [588] But even to him, our act gives no costs; how then could it be imagined that the defendant in error, who has obtained such unlawful judgment, and against whom the reversal is had, should be entitled to costs ? He has unlawfully vexed the plaintiff, and yet wishes him to pay the expenses of it.

The court retaining the record, and awarding a venire de novo, does not alter the nature of the question. When placed in its simple form it is this: Is the defendant in error, upon a reversal of his judgment, entitled to recover costs of the plaintiff in error ? Certainly he is not. If the plaintiff in error, upon the reversal of the defendant’s judgment, had instituted a new suit, instead of taking out a venire de novo, as well he might, I apprehend the defendant would never have taxed his costs upon this reversal, in his first action, and yet the course that has been taken, does not alter the case.

[*] Eosseel and Pennington, Justices, concurred in this opinion.

Costs taxed in favor of the defendant, from the awarding of the venire de novo.  