
    Edwin Jerome v. Charles Seymour.
    Where leave is given to complainant to dismiss Ins bill conditionally, the defendant may, until the condition is complied with, consider the case as in Court or out of Court, at his discretion; and may either proceed in it, or consider it dismissed and apply to the Court to enforce the payment of his costs.
    Where leave had been granted complainant to dismiss his bill on payment of costs, and the order was entered generally without mentioning costs, on application of the defendant, it was ordered to be amended so as to correspond with the terms on which leave to dismiss was granted.
    At the last motion day leave was granted to complainant to dismiss his bill, on payment of defendant’s costs; and an order was entered dismissing the bill generally, without making any mention of the costs. The defendant, by petition, asked for an amendment of the order, so as to make the dismissal of the bill depend on the payment of his costs.
    
      E. S. Lee, in support of the motion.
    
      E. C. Seaman, contra.
   The Chancellor.

The motion must be granted. As the order now stands, the bill is dismissed, and defendant loses his costs, as there is no mention of them in the order dismissing the bill. Leave was given complainant to dismiss his bill conditionally, that is, upon the payment of defendant’s costs; and the order should have been so entered. The effect of such a dismissal is that complainant is not out of Court, unless at the election of the defendant, until he has paid, or offered to pay, the costs. Until the costs are paid, defendant may consider the case in Court, and proceed in it as if no order had been entered; or he may consider the bill as dismissed, and apply to the Court to enforce the payment of his costs, according to the implied agreement to that effect contained in the order. Cummins v. Bennett, 8 Paige R. 79.

Motion granted.  