
    Burton v. Power.
    Where terms are imposed upon granting a continuance, the party has his election to accept tho continuance or not. If he reject it and go to trial, he may, after having moved the court below for a now trial, assign tho imposition of the “terms” as error.
    Whether, after final judgment, a party is entitled to assign as error the imposition of “terms” which he accepted upon any interlocutory order, guere.
    Error from Houston.
    
      Thomas J. Jennings, for plaintiff in error.
   Lipscomb, J.

In this ease a suit is now pending in the District Court of Houston comity, in which the defendant iu error is plaintiff and the plaintiff iu error and another aro defendants. The defendants applied for a continuance, which was granted on tho condition of the defendants paying all costs, and an execution was ordered to issue for tho costs. The defendant Burton then obtained a mandato for a writ of error to bring up the decision, order, or decree, for the payment of the cost, and that execution should issue for the same to (his court for revision. This court cannot take cognizance of an order of the kind made in this case. Continuances, on such terms as'the court may think just to impose, are common; and whatever the terms may be, the party on which they are imposed lias his election to take tho continuance upon the terms imposed or to reject it and go to trial; and if lie does so, and the verdict is against him, and lie believes the court erred in ruling him to trial when ho hart shown a gooil cause for a continuance, lie can have the judgment, of the court overruling his motion for a eontiiiance revised on error or appeal, after moving tho court below for a new trial on the ground of his being ruled to trial against his showing for a eontiuuauee. He cannot, however, have any onlor ior the payment of costs or any other interlocutory order revised until aft-r tinal judgment in the case. The district judge who granted the mandate' for a writ of error had overlooked the fact that the act of 1846 that gave him authority to issue such mandates was repealed hy the act of 1848. The writ of error is therefore dismissed.

Judgment accordingly.  