The 6th section of the Act of February 9, 1866, entitled “ an Act to regulate fees in the city and county of San Francisco,” (Stats. 1865-6, p. 68,) provides that the prevailing party in certain actions “ shall be allowed five per cent, on the amount recovered,” but not to exceed $100 on one judgment. The question presented is, whether this provision was repealed by the Code. The Code, while it provides for the recovery of costs, does not declare of what items costs shall consist. If the percentage in question is to be regarded as costs, or as in the nature of costs, it is not abrogated by section 18 of the Code* of Civil Procedure, for it does not fall within “cases provided for by this Code,” as specified in that section. If the percentage is not to be considered as costs, it is not abrogated or repealed by any provision of the Code to which our attention has been directed.
Order striking out the item of $69 30, claimed as percentage in the plaintiff’s bill of costs, reversed, and cause remanded.