The plaintiff is entitled to supreme court costs If the. penalty were more than $250, there would be no *683*doubt. To satisfy the statute in this case, the nominal , carnages may be added., (b)
, (b) i. e. They "would be added, on the defendant’s having a judgment against ‘him, which, of course, must he the criterion as to" the rate of these interlocutory Costs 5 i. e, whether they shall' be S. C. Or C. P. costs. Had the judgment been perfected on the demurrer, the plaintiff would have recovered damages as such. (Trin. 11 Car. rot. 323, Book of judgments, 30.) But by the book of judgments, Trin. 44, Eliz. rot. 715, Oct, Hill. p. 158, damages distinct from costs are not given in a judgment for the plaintiff, on demurrer to a plea in bar to a declaration in debt On a writing obligatory 5 and so the Case Would be Within The People v. Haltett (4 Cowen, 67), which was final judgment in debt by default.
N. B. The marginal note to the principal case was discovered to be Wrong after it had passed the press. It should read as upon demurrer to the declaration; and the clause stating the quart should be stricken out.