Sabin & Kellogg v. Johnson & Mann — 7 Cow. 420

Majority

p. 420

*Sabin and Kellogg against Johnson and Mann.

UTICA,

August, 1827.

Headnote

where a rule condition, it formedbLto£ er, i. e. within

es. g. rule defedl pleading, the hf^co^pay'

On the 15th of May, 1826, at New-York, the defendants moved for, and took a rule setting aside a verdict against them- with all subsequent proceedings, they paying the costs of the trial and of opposing the motion; the judgment to stand as security. June' 12th, a copy of this rule serve<^ on the attorney for the plaintiff. On the 13 th, the costs were taxed under the rule at $36 46. This was at Onondaga, where the attorney for the plaintiffs and the agent of the defendants’ attorney resided. The costs were immediately, on taxation, demanded of the latter, who refused to pay them; not being in funds from his client. But he wrote by the next day’s mail to Troy, where the attorney for the defendants resided ; procured the money, and tendered it to the attorney for the plaintiffs, on the morning of the 22nd of June, without any additional costs after the' taxation. The attorney for the plaintiffs declined receiving the money, on the ground that it was not paid imtanter. The matter lay in this situation till the 3d of August, 1827, when the defendants learned that the plaintiff’s attorney had issued execution.

A motion was now made, in behalf of the defendants, to set it aside as irregular.

J. P. Cushman, for the motion.

D. W. Forman, contra,

cited 1 Dunl. Pr. 353; 2 Cowen, 598 & 599, and 600, note;(b) Tid. Pr. 508, note;(y) Imp. K. B. Pr. 252.

The plaintiffs were regular. Their proceedings were set aside, the defendants paying costs. No particular time being mentioned in the rule, it was the duty of the defendants to pay instanter, that is to say, within 24 hours. Under the circumstance, however, the defendants *may take their motion, on paying the taxed costs, with those upon this motion.^[1]

(a) (a) The same rule was held at this term in Miller v. Heath, (ante, 101.) The rale, as finally drawn up in that case, was that the defendafits have leave to withdaw the demurrer, on pleading and paying costs. The costs were paid in season; but the defendants did not plead, insisting that they had the usual time, 20 days. The plaintiff proceeded, and took judgment after executing a writ of inquiry; and this court would not set aside the proceedings except on payment of costs. In all these cases, where costs are to he paid as a condition, and the attomeys reside at a distance from the place of motion, the safer course is to place the counsel who move, in funds to pay immediately. They should also he instructed as to any other probable conditions; as pleading instanter. Ti, ,, ... . , , „ , . . Jj these things be not done, the court sometimes, on suggestion, insert a reasonable time in the rule, provided it does not delay the cause*