
    Alexander Martin, vs. Mitchell & Davis.
    
      For defect in the declaration, the Circuit Court ordered Plaintiff to be non-suited or pay the costs: Plaintiff went to trial, but gave notice of an appeal from the order directing him to pay costs: Appeal dismissed; the circuit court might make the or~ der on such condition, and plaintiff accepted the terms-by going to trial.
    
    This was an action of assumpsit on a note of hand. The declaration alledged that the defendants promised to pay $ 100 '75, the amount of the note, when requested, according to the tenor of the note, without specifying the day the note became due.
    The defendants had pleaded the general Issue and also wished to rely on the plea of tender, which had not been pleaded. Plaintiff permitted defendants to take the benefit of the jileas of tender and went on to trial, under the expectation that the case was to be tried on its merits; but after plaintiff had closed his evidence, defendants attorney moved for a non-suit, for the above mentioned supposed defect in the declaration, and the court ordered a uon-smf, unless plaintiff would go on to trial on terms of paying all costs. Plaintiff then gave notice that he would appeal from the order of the Court requiring him to pay costs, but went on to trial and took a verdict. He now moved to reverse the order of .the Court;
    1st. Because the note offered in evidence was sufficient to support plaintiff’s declaration.
    2d. Because defendants ought not, under the circumstances of the case, to have been permitted to take any exception to the plaintiffs record, as the plaintiff permitted him to put ia the plea of tender, under the belief that the case was to have been tried on its merits.
    3d. Because'the court ought not to have compelled the plaintiff to pay more than the cost of present term, in any view of the case.
    4th. Because the court ought to have permitted plaintiff to amend without paying any cost.
   The opinion of the court, was delivered by-

Mr. Justice Richardson.

A. W. Thompson, for motion.

Herndon, contra.

Whether the reasons for á non-suit were sufficient, is not' how for the consideration of this Court, but whether the court had the power to order a non-suit unless the plaintiff would pay the costs, is the true question.

The plaintiff accepted of the terms offered by the court, reserving the right to inquire into the power of the court to order a non-suit nisi, and must be bound by his acceptance, if the court was competent to annex such a condition precedent to the restoration of the case to the docket.

No doubt can be entertained of the power of the court to annex the condition, and order the non-suit, nisi; at least since'the case of Steen, vs. Drake and Cavanah, 2 Bay, 431. In that case, the court ordered the cause to stand over and the plaintiff’s to pay the costs within thirty days, or be non-suited. The cost? not being paid within the thirty days, judgment of non-suit was signed. — And upon an appeal to this court, all the judges held the non-suit properly ordered; and took the occasion to lay-down the rule, how costs ordered in a cause in transitu, are to be paid which may be seen by referring to that adjudication. But independently of this decission, if the plaintiff’ were to sue-ceed in setting aside the condition of his paying the costs or being non-suited, it would follow that the non-suit must be entered up; in which event he would be obliged to pay the costs s and the verdict of course be set aside,. The motion is dismissed.

Johnson, ColcocJe and JYott, Justices, concurred*  