Logan v. Gibbs , 16 Ky. 19 ( 1805 )

Opinion of the Court, by

Ch. J. Muter.

THE court below granted the defendant a new trial, “ upon his paying the costs of the former suit," and an execution issued against him for the amount of the whole costs from the commencement of the suit. At a subsequent term, a motion was made to quash the said execution, which was overruled with costs. It is assigned for error, that the court below erred in not quashing the execution.

In granting new trials, which is matter of sound discretion in the court, it may lay the party who shall apply, under all such equitable terms as the other party shall desire, and mutually offer to comply with; and although, in general, the court need not state the facts which induced them to grant the new trial, or impose the terms; yet if it be awarded against an established rule of practice, the ground for so doing ought to be disclosed. The established rule of practice in granting new trials, upon payment of costs, is, to give the costs of that term only; and the court below, in granting the new trial, on the terms of the defendant’s paying the whole costs of the suit, was a departure from the established rule, and the grounds for so doing ought to have been disclosed.

Judgment reversed with costs, and liberty to the defendant to sue out execution for the costs of the term.