Sands v. M'Clelan — 6 Cow. 582

Majority

p. 582

Sands against M’Clelan.

Headnote

On demurrer to the plaintiff’s declaration, this court gave judgment for the plaintiff, with leave to the defendant (0 withdraw his demurrer and plead, on payment of costs. * J 1 17 v The plaintiff not demanding the costs, or causing them to be taxed, the defendant filed a plea, and entered a rule to reply, which not being done, he entered a default,

against'a^party demurring, with leave to withdraw the piéad^on payment of coste, he must seek the opposite at-tomey and tender him the costs ; or offer to pay on their being taxed ; and this is a condition pre-dent to plead-

Sherwood moved to set the default aside.

E. Cowen, contra.

The payment of costs was a condition prece-act 0f pleading. The defendant should have sought the plaintiff’s attorney, and tendered the costs, or demanded a taxation, offering to pay on their being taxed.

Motion granted.