
    Richard Steen against Drake & Cavenah.
    Columbia,
    1802. Wherever costs are ordered to be paid by either party to the suit while the cause is in transitu, the party who is hound to pay is to call and demand a taxed hill from the attorney of the other party, and to lender the money; but iC his opponent is not ready to tender the bill when called on, then it is Ills duty to go andtenderthe bill to him who is bound to pay and demand the money.
    Calling at the clerk’s office, who represents and demanding a bill, is not sufficient; tlic attorney on record is the person, the party on either side, and is the person to be called on for that purpose.
    TRESPASS to try title to land in Union district. Motion to set aside nonsuit.
    This cause was on the docket at the preceding court to the, one when the nonsuit was ordered, to wit, in November, 1800, and according to the rule of court was regularly called as soon as the juries were made up and sworn at the April court, 1801, which was about 11 or 12 o’clock on the first day of court, but the plaintiff’s witnesses not being ready, he made an affidavit of their absence and materiality, &c. in the usual form ; when the court ordered the cause to stand over on the plaintiff’s paying the costs within thirty days, or, in case of failure, being nonsuited. The costs not having been paid agreeable to the order of court, the clerk of the next succeeding court, to wit, in November, 1801, omitted to put the cause on the docket for trial, and signed an order for judgment of nonsuit. Mr. Gist, the plaintiff’s attorney, as soon as he found there was an order for nonsuit signed, moved the circuit court to have the order set aside, and the cause reinstated, upon the following grounds 1st. That no costs had ever been taxed as having accrued at the preceding court, as the plaintiff had called at the clerk’s office to inquire what was to be paid, but could get no information on the subject; and, 2dly. That no judgment had ever been finally entered up, only an order for one, which he moved might be set aside, as he was then ready and willing to pay whatever was due. But the presiding judge (Giumke) refused to make the order, and confirmed the nonsuit for this supposed laches.
    
    This was therefore a motion to reverse the order for the nonsuit, and to have the cause placed'again on the docket for trial. . --
   The judges,

in order to settle the practice in our courts, resolved, that in all cases where either party, plaintiff or defendant, was ordered to pay costs, the party who was bound to pay should call on the attorney of the other party and demand his taxed bill within a reasonable time ; and if the party who was to receive them, was not ready with his bill at the time appointed, then it was the duty of the party who was to receive them to call and offer his taxed bill for payment and demand the amount, without which he should not have the benefit of the order of court.

As, however, the obligation' to pay the costs in this case was on the part of the plaintiff, at whose instance the cause was postponed, he should have called and demanded the taxed bill, and tendered the amount within the time prescribed by the order of the court, which had a right to impose terms on the parties ; but as he made default, the defendant was regular in signing the judgment of nonsuit. That calling at the clerk’s office for a bill was not sufficient ; the attorney on record is the person who represents the party, and the application should in all cases be made to him.

Rule for setting aside the nonsuit discharged.

All the Judges present.

N. B. This case is only important, as it settles a rule of practice in regard to payment of costs while a cause is in •transitu.  