¶1The only question to be determined upon this writ of error, is whether the Court erred in giving judgment in the alternative, against the plaintiff, for the costs by him incurred in the prosecution of his suit..
¶2This was a case exclusively of equitable cognizance; and in Walling v. Kinnard, (10 Tex. R. 508,) the equitable rule was recognized, that, though prima facie, the party who fails in the suit is liable for costs, yet the prima facie claim for costs may be rebutted by the circumstances of the case. And there being no evidence to the contrary, this Court acted upon the presumption that there had been a proper exercise of discretion in the Court below in awarding costs against the party who was successful in the suit; and affirmed the judgment. There is, in the present case, no statement of facts; and nothing to repel the presumption that the Court adjudged equitably in awarding costs. Upon the authority of Walling v. Kinnard, the judgment must be affirmed.
¶3Judgment affirmed.