
    SCREWS vs. UPSHAW.
    [conditional gkant of new tkial.]
    X. ~Wltat‘constitutes payment of bosts in performance of condition. — Under an order granting a now trial, “ on the sole condition that the plaintiff pay all costs in loar months,’' nothing but an actual; payment in money, within the prescribed time, can be deemed a compliance with 'the condition, unless tha defendant' consents to receive something else in satisfaction of the costs.
    
      Appeal from the Circuit Court of Barbour.
    Tried before tbe Hon. JoHN Gill ShoRtek.
    IN this case, at the spring term, 1857, after the rendition of a judgment on verdict for the defendant, on motion for a new trial, the court made an order in these words: “ It is-considered that said motion be granted, on the sole condition that the plaintiff pay all costs in four months.” At the next ensuing term, the defendant moved the court to strike the case from the trial docket, on these two grounds : 1st, because the order granting a new trial was void; and, 2d, because the condition annexed to the order had not been complied with. On the hearing of this motion, as apears from the bill of exceptions, the following evidence was adduced :
    “ The defendant introduced one McNab as a witness, who was the clerk of said court, and who testified, that John W. Clark, the sheriff of the county, came to him in May, 1857, and told him that he had been requested by one' Thomas Elvers, who was interested in the subject-matter of the suit, to pay the costs which had to be paid in order to get a new trial in this case, and told witness to charge the costs to him (said Clark), and that he would allow him (witness) credit for the amount on settlement; that he (witness) was indebted to said Clark, for costs collected for him as such sheriff, and also an individual debt for goods and groceries ; that said Clark, as sheriff, had also collected costs for him as clerk, to be accounted for on settlement; that it was their custom to keep running accounts against each other for costs; that he agreed to charge said costs to said Clark, and did charge them to him, to be placed to his credit on said account for goods, groceries and costs; that no money was in fact paid to him for said costs, or any part thereof, either by said Clark or any one else, within said four months, or at any other time; that he had never received any funds from any person, to be applied to the payment of said costs, or any part thereofthat the order for the payment of costs had never been complied with, except as above stated;, that at the time of said arrangement and agreement with Clark, he (witness) gave said Clark a receipt, dated the 20th May, 1857, which acknowledged payment by the plaintiff of all the costs in this case, and which receipt was genuine ; that he had always held himself in readiness to pay the witnesses in the case, whenever they presented their certificates ; and that, at the fall term, 1857, he had paid most, if not all, of the witness-fees due in respect of said new trial. The-defendant also introduced a witness who testified, that he had attended and been examined as a witness in this case, had proved his attendance, and received his certificate; that at the fall term, 1857, he presented his said certificate for payment to George W. Coleman, the general deputy of said McNab as clerk, and was informed by him that the costs had not been paid, and that they were to be paid by said Thomas Eivers; that afterwards, on the same day, -he presented his said certificate to plaintiff, who then paid him the money due on it.
    “ The defendant resting his said motion on the foregoing proof, the plaintiff then introduced and examined as witnesses the said Clark and Coleman, sheriff and deputy-clerk as aforesaid, both of whom testified, that said Claik, within four months from said spring term, 1857, and after said arrangement between him and McNab, upon the idea occurring to him that said arrangement might not stand, went into the clerk’s office, and finding said Coleman-there, who transacts the general business of the office, told him that, if said arrangement with McNab about the payment of said costs would not do, he was willing then to pay the money; that said Coleman replied, £ never mind, it would do at the next term of the courtand that Clark tendered in money and made no offer, except as above stated. Said Clark further testified, that he had no funds in hand at the time of said arrangement with McNab, or at the time of said offer to Coleman, belonging either to plaintiff or said Eivers; that -at the time of said Eivers’ request to him to pay the costs, he was the administrator, by virtue of his office as sheriff) of the _ estate of one Cobb, against which said Eivers had an unpaid claim for about $75; but that he had no reference to said claim in undertaking to arrange for tbe payment of said costs as above stated. The amount of the costs to be paid was $56.
    “The foregoing being all the evidence, the court held that the condition had not been complied with by the payment of the costs within the time limited, and ordered the cause to be struck' from the docket; to which the plaintiff excepted,” and which he now assigns as error.
    L. L. Cato, for the appellant.
    Pu&h & Bullock, contra.
    
   It. W. WALKER, J.

The effect of the order made by the court, upon the motion for a new trial, was, that the judgment in favor of Upshaw was to stand, unless Screws should pay all the costs in four months.

By virtue of his office, the clerk was authorized to receive the costs, the payment of which was the condition upon which the new trial was granted. But he had not the right to accept of anything but money in payment. The negotiation between the sheriff and the clerk, however it might bind the latter, cannot affect the plaintiff in the judgment, who in no wise assented to it. Without Upshaw’s consent to receive something else in satisfaction of the costs, nothing but an actual payment in money, within the time prescribed, could be deemed a compliance with the condition imposed by the court. Williams v. Charles, 7 Ala. 203; Cook v. Bloodgood, 7 Ala. 687; Bobo v. Johnson, 3 S. & P. 385; Bank of Orange Co. v. Wakeman, 1 Cowen, 46 ; Keller v. Scott, 2 Sm. & M. 81.

The offer of. the sheriff to pay the costs, when he' haci no money with which to make the payment, and the reply •ofthe deputy clerk waiving payment at the time, cannot, as against the plaintiff in the judgment, be deemed equivalent to actual payment. How it might be, if Smews had, within the time prescribed, made an actual tender of the money to the clerk, and the latter had refused to receive it, we need not inquire. So such proof was made in this case.

The judgment is affirmed.  