¶1RUGGLES, Ch. J., read an opinion in favor of affirming the judgment as to the part of the costs given under section 307 of the code upon the ground stated by Sanford J. in Comstock v.Bayard (2 Sand. S.C. Rep. 705), and as to *30 the allowance of one hundred dollars on the ground that it was the exercise of a discretionary power given the court below with which this court could not interfere.
¶2GARDINER, JEWETT, JOHNSON, MORSE and MASON, JJ., concurred in this opinion.
¶3WILLARD, J., concurred in the opinion so far as it related to the ordinary costs, but was in favor of reversing the judgment on the ground that the allowance of one hundred dollars was made by the court below as a matter of course and not of discretion.
¶4TAGGART, J., read an opinion in favor of affirmance, on the ground that the case was not within any of the provisions of title 10 of the Code of Procedure, and that the provisions of title 1 of chapter 10 of part 3 of the Revised Statutes was not necessarily repealed by section 303 of the Code of Procedure, but remained in force under section 471, and that under section 19 of the first title of the Revised Statutes referred to, the defendant Gardiner, who prevailed, was entitled to costs unless the court had certified that there was reasonable cause for making him a defendant.
¶5The following resolution was then passed:
¶6"Resolved, That the defendant Gardiner was entitled to costs as a matter of course, under section 305 of the code of procedure."
¶7For the resolution — RUGGLES, Ch. J., GARDINER, JEWETT, JOHNSON, MORSE, MASON and WILLARD, JJ.
¶8Against the resolution — TAGGART, J.