Wolf v. Luyster , 1 Hall 220 ( 1828 )

Per Curiam.

The plaintiff’s proceedings were all regular, according to the practice of the Supreme Court. Where a favour is granted to a party upon payment of costs, it is his duty to seek the adverse party immediately, or Avithin 24 hours, pay the costs, and then avail himself of the benefit allotved by the rule. In this case, however, as it appears that the defendant’s attorney Avas unable to attend to his professional duties, by reason of sickness, and there is an affidavit of merits, the proceedings upon the writ of inquiry, and subsequent thereto, must be set aside. The defendant, however, must pay all the costs up to this time, upon the presentment of the taxed bill; and until that is done, the judgment must stand.

[S. B. H. Judah, Att'y for the plff. H. Western, Att’y for the deft.]

Note.—The court intimated that the practice in Such cases, hereafter, would be, that if the taxed bill Avere not paid upon presentment, the party in whose favour it had been taxed would be at liberty to proceed.