
    Joseph Hall, Judge of Probate, versus Elizabeth Durell et al.
    
    In an action brought originally in this Court, at a law term, in which action an ap« pearance is entered for the defendant, but no question of law, nor any defence, is intended to be made, and no plea is filed, the plaintiff’s costs of attendance are to be taxed for only three days.
    Debt on a probate bond given by Elizabeth Durell on taking letters of administration on the estate of her deceased husband. The action was brought for the benefit of a creditor of the estate, who had obtained an execution against the administratrix personally, on a scire facias issued for that purpose, for waste of the estate. This action on the bond was entered at March term 1829, and an appearance was entered for the defendant. In May following, the defendant paid the sum due to the creditor, and costs of attendance for three days only, to a person not authorized to receive the same, (the creditor being absent,) under an agreement, that if the creditor confirmed the settlement, the action should be entered neither party. The creditor refused to confirm the settlement, unless he was allowed costs of attendance for the whole of March term 1829.
    
      Osgood, for the plaintiff.
    
      Field, for the defendant.
   Per Curiam.

The action was not put into a condition to authorize the taxing of more costs than have been paid. There were no pleadings, and no question of law was raised. It was necessary to bring the action into this Court, (which has original and exclusive jurisdiction in suits upon probate bonds,) but as it was settled by the parties, it ought to be presumed that there was no intention to make a question of law ; and the plaintiff’s counsel might, on the first, second or third day of the term, have moved for a rule on the defendant to plead, in order to ascertain whether there was any question of law. By analogy to cases standing for a trial by jury, costs should be taxed for onlv three days’ attendance at the law term.  