To compel vacation of order granting costs.

Denied July 21, 1891, with, costs.

Relator, as administrator,, sued one Cummer, in case for negligence and had a verdict and judgment. Satisfied that the declaration was defective, respondent set aside the judgment and verdict, and gave defendant costs as for a trial and made payment thereof a condition precedent to a new trial. No question had been raised as to the sufficiency of the declaration until the presentation of the requests to charge.