
    Jackson, ex dem. Lewis and others, against Larroway.()
    Where the trial of a cause is put off, on payment of costs, the plaintiff may demand the costs immediately, and if not paid, may proceed in the cause, or he may have the costs regularly taxed on due notice, and if after service of the taxed bill, the costs are not paid, he may take out an attachment instanter.
    
    Notice of taxing costs, must be served on the attorney, not on the counsel.
    Van Vechten moved to set aside the attachment in this cause, which had been granted for the costs of putting off the trial, and that there should be a retaxation.
    He contended that attachments are ordinarily granted on rules to show cause, and are never made absolute, in the first instance, but in very flagrant cases; and that if the party answers, he shall be discharged from the attachment; and cited 1 Bac. Abr. 183, (B). 2 Hawk. Plea. Cr. 214. He further insisted, that there must be a demand made of the costs, after the bill has been regularly taxed, before the party can be considered as in contempt. (Barnes, 120. 1 Lilly’s Abr. 162.) Besides, he insisted, that according to 1 Salk. 83, no attachment will lie at all for the costs of putting off a trial.
    
      L. Elmendorf,
    
    contra, contended; that in England the attachment is always absolute in the first instance. He cited Tidd’s Pr. 364. Runnington on Ejectment, 142. 1 Sellon, 415.
    
      
      (a) S. C., C. C. 123.
    
   Per Curiam.

Whenever a cause goes off, on motion of the defendant, upon payment of costs, the plaintiff has his election, either to wait the event of the suit, and have all his costs taxed together, or he may make them out, instanter, under the direction of the court, (subject, however, to be reviewed on a future taxation, if required,) and demand them immediately, and if not paid, he may proceed with the trial; or he may waive this privilege, and resort to an attachment, but if he does so, he must first have his costs regularly taxed, on a proper notice, as in other cases, and that notice must be served on the attorney in the suit,( ) and not on the counsel, as has irregularly been done, in *this instance. Had he been regular in this, he would have been entitled to his attachment instantly, without a previous notice.

The notice in this case having been served on counsel, and the taxation having been made on the same day notice was given, the taxation and all proceedings founded on it were irregular.

The case mentioned from Salkeld is anonymous, and standing alone, we think it not entitled to weight.

The attachment must be set aside with costs.

Rule granted.() 
      
      
        (b) See People v. Hassenfratts, 3 Cowen, 26; Howland v. Ralph, 3 Johns. 20 ; St. John v. Hubbard, 1 Wend. 194; Burns v. Burns, 7 Cowen, 470.
     
      
      (c) “ When the trial is thus put off, it is usually upon the terms of paying any costs the opposite party may have thereby been put to ; and when the plaintiff sued as a pauper, and the defendant had the trial put off; upon undertaking to pay the costs of the day, the Court of Common Pleas granted an attachment against the defendant for the non-payment of these costs. 1 B. & 3?. 39. And these costs should be- paid instanter, that is, within twenty-four hours; Rule 60 ; and for this purpose, it is the duty of the defendant to seek the plaintiff, and tender the costs after taxation, 2 Wend. 293, without waiting for a formal demand; 19 Johns. 270 ; et vide 1 Johns. Cas. 396 ; although, perhaps, the rule should express that the costs are to be paid instanter, it being provided by rule 60, that in all cases where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order shall require such payment or performance, the party, whose duty it shall be to comply therewith, shall have twenty days for that purpose, unless otherwise directed in the order. This rule is probably intended to apply to motions in bank ; but to avoid any question, the judge at nisi prius would, upon suggestion, direct an express provision in the rule, as to the time of payment.” Grah. Trac. 2d ed. 287, 288.
     