
    MARY ROSE vs. HENRY SMITH.
    Question of Costs submitted by Consent.
    January Term, 1887.
    Judd, C.J., McCully, Preston and Bickerton, JJ. Fornander, J., absent.
    The defendant’s demurrer having been overruled and the plaintiff having discontinued during the progress of the trial:
    Held, that the defendant was not entitled to the costs of the demurrer and argument thereon.
    
      Kinney & Peterson, for plaintiff.
    
      Ashford & Ashford, for defendant.
   Opinion of the Court, by

Preston, J.

This is a question as to taxation of costs, submitted to the Court by consent.

The defendant demurred to the plaintiff’s declaration, and the demurrer was overruled.

The defendant answered over, and the case went to trial, during which the plaintiff discontinued, and undertook to pay the costs up to that time.

At the taxation of costs, the defendant claimed to be entitled to the costs of drawing demurrer and copy, and attendance on arguing same, according to the scale allowed to attorneys by Section 1280 of the Civil Code, to which items the plaintiff’s attorney objected. The question for our consideration is, “ Were those items taxable against the plaintiff.”

Our answer must be in the negative.  