The opinion of the court was delivered by
The provision for giving costs to the defendant in a suit, when the plaintiff shall discontinue his action, or become non-suit therein, was substantially the same in the old statute that it now is. And it has never been construed as applying imperatively to every case, where the plaintiff has chosen not to enter his suit in court. Whenever it has been made to appear that the defendant had received timely and proper notice that the suit would not be entered, he has been denied costs upon such an application as the present. And if, between the commencement of the suit and the time for entering tbe same in court, the cause of action has become extinguished by some act of the defendant, not operating for the plaintiff’s benefit, nor done with his concurrence or assent, we think the defendant should not have costs upon such an application. To award .costs in such a case would be to punish the plaintiff for not entering his action, when, without his fault, and solely by the act of the defendant, he had become disabled to prosecute it to any beneficial purpose.
Judgment of county court affirmed.