Bynum v. . Daniel , 63 N.C. 24 ( 1868 )

Reade, J.

This was an action against two defendants, in which there was nol. pros, as to one, and a verdict and judgment against the other for the demand and full costs. The defendant insists that the costs incurred in regard to the defendant against whom nol. pros, had been entered ought not to be taxed. Probably that would be so (but we do not decide it) if it were not for the peculiar circumstances of this case. The action originally was debt. On the plaintiff’s motion, it was changed to assumpsit, — the defendant, by leave of Court,, having previously added the plea of the statute of limitations* Upon this the parties, by common consent, proceeded to trial.

It seems to us that the proper time to raise any question about the costs of the action was at the time when the form of action and the pleadings were changed. It was then the province of the Judge to impose such terms as to costs as he might think proper.

We are of opinion that it is to be presumed that the question of costs was at that time considered, and that, by proceeding with the cause as it stood, its incidents, including the costs, passed along withjt and must abide the result.

There is no error.

Let judgment be entered in accordance with the verdict and judgment below.

Per Curiam. Judgment affirmed*