
    Wigfield v. Dyer.
    When leave is given to amend on payment of costs, the payment is not a condition precedent, unless so specially expressed in the order.
    There had been a plea in abatement, upon which the plaintiff had leave to amend on payment of costs. The amendment was immediately made at the last term, no costs being paid ; and a rule laid on the defendant to plead, which rule had not been complied with.
    
      
      Mr. Mor sell, for the plaintiff’,
    moved for judgmerit on the rule to plead.
    
      Mr. F 8. Key, for the defendant,
    objected that the plaintiff had not paid the costs and therefore ought not to have the benefit of the amendment and his rule. And the Court at first inclined to that opinion, considering the payment of the costs as a condition precedent. But on reflection and inquiring of the bar as to the practice, and on examining the Court’s notes of cases, and finding no case in which the question had been before made, —
   The Court

said that they understood the general practice to be not to insist on the payment of costs in such cases as a condition precedent. However, there might be cases in which the Court, in their discretion, would direct the costs to be first paid.  