
    Mrs. A. F. Simpson v. S. D. Richardson.
    — On a Rehearing.
    Liability for costs should only be paid when justly incurred. An error on the part of the Court a quowill be corrected.
   Howeed, J.

A rehearing has been granted in this case for the purpose of revising our judgment in relation to costs.

The plaintiff complains that there is error in condemning her to pay the costs in the lower Court, incurred prior to the refusal of the Judge to grant defendant a trial by jury. These costs should manifestly abide the final decision of the cause, as plaintiff may sustain her suit before a jury, and be entitled to recover them from defendant. It is only the costs subsequent to the error of the District Judge, which should be now paid by plaintiff.

It is therefore ordered that the decree heretofore rendered by us be so amended as to condemn the plaintiff to pay the costs of appeal and those of the lower Court, incurred subsequent to the refusal of the Judge, to grant defendant a trial by jury, those prior thereto to abide the final decision of the cause, and that, as thus amended, the judgment remain-undisturbed.  