
    D. M. Turney, in Error, v. S. M. Lamont.
    New trial. Granted on payment of costs. Mnor to set aside. When. Where a new trial has heen granted, upon the payment of costs, for which execution was allowed to issue, it is error for the Court to set it aside and render judgment upon the former verdict, because of the failure to pay such costs.
    FROM DAVIDSON.
    Appeal from the Circuit Court. Eugene Cary, Judge.
    M. M. Beien, Sr., for Turney.
    Wilkin & Chamberlain and David Campbell for Lamont.
   Deaderick, Judge,

delivered the opinion of the Court.

Lamont sued Turney, in replevin, in the Circuit Court of Davidson County, and recovered a judgment at the January term, 1867. Whereupon defendant entered a motion for a new trial, which motion, the record recites, “on argument of counsel, is, upon consideration of the Court, sustained upon the payment of all costs accruing in this cause up to this time, for which execution may issue, and the new trial granted.-”

At the May term, 1869, more than two years after the new trial was granted, the plaintiff moved the Court for judgment upon the verdict rendered at the January term, 1867, which motion was allowed, a judgment rendered and entered of record upon said verdict, upon the ground that the new trial was granted upon the condition that the costs should be paid, and the costs had not, in fact, been paid.

Defendant excepted and appealed.

The judgment of the Circuit Judge, setting aside •the order granting a new trial and rendering a judgment against defendant on the verdict of January term, 1867, was erroneous, and must be reversed, and the cause remanded to the Circuit Court for a new trial upon the merits.  