
    SOMERS adsm. SLOAN.
    In Case. Matter of Practice respecting Costs.
    Tlie order of court setting aside a verdict and ordering a new trial upon pay- . ment of costs, by the plaintiff, renders the payment thereof a condition precedent, without performance of which; or until a demand of the taxed bill is made, and a tender of being ready to pay it, the cause cannot be noticed again for trial.
    The intimation of a contrary rule, in the case of Gilliland v. Rappleyea, 3 Green, 142, overruled.
    
      Mr. Wall for the defendant,
    moved to set aside the verdict which had been rendered for the plaintiff in this cause, or for a. rule on the plaintiff to show cause why the same should not be set aside, on the ground, that the action had been prematurely and irregularly noticed for trial. The cause had been formerly tried and a verdict rendered for the plaintiff; but he not being satisfied with that verdict, had succeeded in getting the order of this court, setting aside the verdict and granting a new trial, on payment of costs. The cause after that had been permitted to sleep for more than one year, when the plaintiff’s attorney again noticed it for trial, without having paid or offered to pay to the defendant, the costs of the former trial.
    
      Mr. Browning
    
    admitted the facts so far as they had been stated by the opposite counsel, to be correct; but added, that upon receiving an intimation from defendant’s attorney, that the costs had not been paid and that he should consider the notice irregular on that account, ho served the defendant’s attorney, with a request in writing to have his costs taxed and tendering himself ready to pay the same as soon as presented with the taxed bill. That this request and tender was made about thirty days before the time of trial mentioned in the notice; but that defendant’s attorney had neglected to have his costs taxed and to present it for payment as he ought to have done. The plaintiff’s counsel further insisted, upon the authority of the case of Gilliland v. Rapelyea, 3 Green R. 138, that the payment of costs, was not a condition precedent, in such a sense, that the plaintiff could not move in the cause, until they were paid. That it was the duty of the adverse party to tax his costs and demand payment, and until that was done the plaintiff was not bound to pay or tender the costs, and might in the mean time proceed in the cause.
   Opinion of the Court.

Horublower, C. J.

The plaintiff’s attorney has probably been misled, by what was said by the court, in the case of Gilliland v. Rippellyea, 3 Green’s R. 142. The objection there, was, that the defendant, by taking a rule on the plaintiff to pay the costs of the former trial in thirty days, or be non prossed; had given him his election either to pay, or to be turned out of court, with a right to commence another action; and that therefore the defendant had no right to abandon his own rule and to enter up, as he did, a final judgment against the plaintiff on the verdict that had been rendered in the cause. The point now before the court, was, therefore only incidentally alluded to, in that case, and ought not to be considered as disturbing the well settled rule on this subject. Besides; we are now satisfied, upon looking into the books, that the language of the court, in that case, so far as it went to convey the idea, that the payment of costs, was not strictly, a condition precedent; but to be considered as an order of the court, that might be enforced as any other order, by attachment; was incautiously used, and does not express the true rule on this subject.

Where a new trial is granted at the instance of a defendant, on payment of costs by him ; the plaintiff may, if he thinks proper, notice his cause for trial again, without waiting for the costs: but in the case before us, the new trial had been granted on the plaintiff’s own motion, and on payment of costs by him. He had therefore ño right to move in the cause, until he had demanded the taxed bill and tendered-himself ready to pay it. If he noticed the cause before he did that, it was at his peril. The defendant was not bound to receive the notice, nor to prepare himself for trial, until the plaintiff paid or offered to pay the costs. The notice was therefore irregular, if the defendant chose to consider it so; and the plaintiff could not cure the irregularity by afterwards asking for the taxed bill and offering to pay it. If he could he might keep the party in a state of suspense and uncertainty, until the very day of trial.

In Peltier adsm. The Receivers of the Washington Bank, 2 Green’s R. 391, 400, the plaintiffs had leave to discontinue, on payment of costs. They entered a discontinuance, and lodged with the clerk of this court, for the use of the defendant, the amount of the. costs as taxed by the clerk, and thereupon issued a second capias, upon which, the defendant was again arrested. But this court set aside the arrest, on the ground that the costs had not been paid or tendered to the defendant or his attorney, before the second writ was issued. A- number of authorities are there cited, by which that decision was fully sustained. In addition to those, the case of Jackson v. Eddy et al. 2 Cowen R. 598, and the note to that case, and the authorities there mentioned, and also the case of Sands v. McClellan, 6 Cowen R. 582, show the rule to be settled, that the payment of costs, is a condition precedent, and that the party by whom they are to be paid, is to seek the adverse attorney, and tender the costs; or demand a taxation, tendering himself ready to pay, on being presented -with the taxed bill.

As a rule to show cause, would only effect delay in this case, let the verdict be set aside, and a new trial be had, without payment of costs by the defendant. The costs of the last trial are not to be taxed against the defendant in ease the plaintiff should finally recover: nor are any costs to be allowed to the defendant, on this motion, since the practice seems to have been hitherto unsettled in this court.

Verdiet set aside, and new trial granted.  