Bеnjamin P. Hunter brought an action on the case against Lowe, in the Circuit Court of Montgomery, and at the Fall term, 1850, obtained a verdict and judgment for $180 54-100. During the same term Lowe, the defendant, moved the court for a new trial, and thе motion coming on to be beard, the following order was made: “Came the parties by their attorneys, and thе defendant moves the court for a new trial, on the ground that the verdict was contrary to law and without evidence; which motion being beard and understood by the court, it is considered that a new trial be granted the defеndant, on the payment of all the costs of suit.” The defendant did not pay the costs until the first day of the next succeeding term, when they were paid, and after-wards at the same term, the plaintiff moved the court to strike the case from the docket, because the costs bad not been paid during the previous term, at which thе order was made. On the trial of this motion, it appeared that the plaintiff bad examined a witness by deposition, in the vacation between the two terms, and that be bad been cross-examined by the defendant. The defendant also examined several members of the bar, who testified that the usual interpretation put upоn such orders was, that the cost should be paid by the next succeeding term. The court, however, granted the motion, and made the judgment absolute, to which the defendant excepted, and now moves the court for a mandamus to compel
Whether we shоuld grant the writ depends on the proper construction of the order made at the Fall term, 1851. We cannot yield our assent to the proposition that this order was an absolute grant of a new 1rial. It is 'beyond doubt certain, that the presiding Judge did not intend to grant a new trial unconditionally; if he had, no condition would have been attached to the grant. It is therefore a grant of a new trial upon condition, and this condition was that the defendant pay all the costs of the suit. Had he then paid all costs that had accrued, the condition would have been performed. But he did not pay the costs until the next succeeding term. Was this a compliance with the condition? The well-settled rule is, that when the act constituting the condition is the payment of money, but the time when it is to be paid is not specified, then the money is to be paid within convenient time. Bacon Abr. Vol. 2, titlе, condition, 324; Carter v. Carter,
Let the rule be entered.