¶1The writ will be granted requiring the respondent to tax an attorney fee of $10 as for the trial of an issue of fact, the trial having been commenced, testimony taken, and argument begun before nonsuit. The court having awarded full costs to relator, its power to exercise a discretion was at an end, and it became the duty of the clerk to tax the same at the amount provided by statute; and on appeal from his taxation the power of the court was limited to a correction of the clerk's errors, if any.
¶2Under How. Stat. § 9004, the fee fixed for the trial of an issue of fact in an action of assumpsit is $10. The term “ issue of fact" is to be construed in its ordinary sense. It cannot be said that, as a trial of an issue of fact may, as it generally does, involve the consideration by the court of questions of law, therefore the prevailing party is entitled to tax a $15 trial fee in an action of assumpsit. The issue of law named in the statute is.an issue framed upon the record.