1. The judgment in Mason v. Winsmith, 10 S. C. 314, was conclusive of the case, and entitled defendant .to the costs of appeal and also to costs in the Circuit Court, and such right to the Circuit Court costs was not waived by defendant in re-docketing the case on calendar 1, nor by taxing up at first only the costs of the appeal and receiving payment of them.

2. The Circuit Judge cannot permit a plaintiff to discontinue his action after issue joined, except upon payment of costs; and in this case the defendant was entitled to his costs without any order of discontinuance. Opinion by