The Supreme Court held that the defendant was entitled to his costs, at the time of the notice of retainer served, notwithstanding the previous discontinuance of the suit, by entry of the rule, as the defendant’s attorney was retained, and gave notice of retainer without actual notice of discontinuance of suit; and therefore the plea in abatement was held good.
The Court of Errors held that the defendants not having appeared in the first suit, were not entitled to costs, and that the rule for discontinuance which was replied, was a good answer to the plea of another suit pending.
But that it would have been otherwise had the defendants appeared in the first suit before the rule for discontinuance was entered.
Judgment reversed, 15 to 4.