The allowance of costs in this case does not depend on any statute, but upon the rules and practice of the court, merely. It is, of course, *114discretionary. As the tenant is strictly entitled to judgment as in cases of nonsuit, and the demandant, to avoid it, applies for the benefit of another rule of court, by offering to stipulate to try his action at the next circuit, we think we ought to impose on him the terms of paying the costs already accrued, for not proceeding to trial according to his notice. We ought not to grant him a favour, .by allowing him to make this stipulation, and thereby escape the consequence of his default, without requiring him to reinstate the opposite party, and place him in the condition he was, by paying costs.
Motion granted.