Oaksmith v. Sutherland

By the Court.—Brady, J.

—Before the time to reply had expired the plaintiffs tendered the costs which accrued on a discontinuance before issue joined, and gave notice of discontinuance at the same time. Subsequently, and before the period to reply had elapsed, the plaintiffs gave notice of motion for leave to discontinue this action. The reasoning in Cockle a. Underwood (1 Abbotts' Pr. R., 1) does not apply therefore to this case, the counter-claim not having been admitted by the plaintiffs. The notice of discontinuance and the tender of costs were *16all that the plaintiffs were required to do,…