From the case, it appears, that the suit was against Israel B. Loveland with others ; that his real estate was attach-
It is said, that no valid service was made upon him, and he therefore had no occasion to appear. But the same might be said in very many cases, when the writ is abated or quashed for some defect in the service, and yet the defendant is regarded as a party, properly in court and entitled to costs.
In this case, the writ was sued out against the defendant, his property attached and the action entered against him, and we have no doubt, that he might properly protect his interests by becoming a party in court. After the entry, the plaintiff amended his writ by leave of court by striking out the name of Israel B. Loveland and inserting that of Isaac Loveland. It was in effect a discontinuance or nonsuit as to Israel B. and he was fairly entitled to the costs of the term, and ordinarily no more. If the proper entry was made upon the docket at that term, showing that the suit was ended as to Israel B. by nonsuit or otherwise, his costs ought to have been taxed and judgment rendered as of that term, as in the ordinary case of a non-suit or default. If this was not done, and the cost not taxed until a subsequent term, the court generally would be disposed to tax the cost only of the term when the plaintiff so became nonsuit, but this would be within the discretion of the presiding judge.
If the taxation was omitted until the third term, as in this case, and then it was resisted by the plaintiff upon the ground, that the defendant was not entitled to any cost, then, if the judge thought it proper to allow more than the costs of the first term, we should not be inclined to interfere with such exercise of discretion.
If the amendment was actually made at that term, and entered upon the docket, it might fairly be regarded as putting an end to the suit against Israel B. Loveland, and regularly his costs ought then to have been taxed. The omision to do it,might very properly have been considered by the judge, in determining what costs he should allow, and it is to be presumed, that due weight was given to that circumstance.
The result is that we are not inclined to l’evise the taxation and the
Exception is overruled,