Writ quashed.

Note. — The motion in the above case should be stated as a motion to quash the writ because the order was simply an exercise of judicial discretion which is not assignable for error; and the last sentence of the syllabus should be so stated.

The date of argument was March 12, 1888. Paxson, Trunkey and Sterrett, JJ., absent.

In Bach v. Burke, decided April 20, 1891, the supreme court held that the refusal of the court below to make absolute a rule to discontinue, was not reviewable, although the parties, for a valuable consideration, had agreed to a discontinuance.

See also the next case.