
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN. 1806.
    Gourdine v. Theus.
    At .the first term of the district court, after anew trial has been granted, it is in time to move for a rule of survey; and if a survey be necessary, the trial must be postponed, without costs, until a survey is made.
    Motion to set aside an order of Johnson, J,, in Charleston district. Plaintiff had succeeded on a motion for a new trial, and in the district court, before the new trial came on, defendant moved for a rule of survey; in the same term, the cause was called for trial, being the first term after the new trial was granted. The resurvey not being made and returned when the cause was called, a postponement of the cause was moved for until a resurvey should be made. This motion was granted, but on condition that defendant should pay the costs of continuance. The motion in this court was for the purpose of exonerating the defendant from the payment of these costs.
    Simons, for the defendant,
    argued, that the defendant had used due diligence, and that it was not incumbent on him to have had a resurvey returned so early after the new trial granted as the first term, at which, and not before, he was bound to apply for a rule of survey; and that a resurvey could not, by compulsory means, have been obtained in lime for the trial at the first term. A new trial stands on the footing of a cause just at issue, at the first court after it is granted ; and the plaintiff is as much in fault as defendant. The cause could not be tried without a resurvey returned. The defendant had a right to a continuance under the circumstances of the case, and no condition ought to have been imposed.
    Bailey, Pringle, and Parker, on the other side,
    contended, that the imposing the condition was within the discretion of the court, and that this discretion could not be restrained by any fixed rules of law, but must depend upon the circumstances of the case. That the application for a -rule of survey was not made as soon as it might. It was the duty of the party requiring a survey, to apply for the rule of survey as soon as possible. The application might have been made before the new trial was granted, in expectation of its being granted, and it would not have been refused.
   The court,

(Grimke, Bay, Trezevant, Brevard, and Wilds, Justices, Waties, J., absent,)

were clearly of opinion that there was no good reason why the defendant, under the circumstances of the case, ought to pay the costs of the continuance; and granted the motion.  