At September Term, 1859, the cause was submitted to the jury, and there was a verdict for the defendant. At said term the court made the following order, viz.: "Verdict set aside, and new trial granted on paying *Page 415 the costs of this court. Rule on the plaintiff to give security on or before Monday of next term, or this suit will be dismissed." At the next term of the said court the plaintiff moved, on Tuesday, to be allowed to pay the costs of the last court, and tendered a sufficient prosecution bond. He also filed the affidavits of Jesse A. Adams, agent for the plaintiff, and of William B. Rodman, one of his counsel on the former trial, proving that the plaintiff was a nonresident of the State; that Adams, his agent, resided in Wilson County; that after the trial, at September, 1859, the plaintiff, by his counsel, moved for a new trial, which motion was argued; that the judge did not then decide upon it; that afterwards, during that term, the judge did direct the clerk to make the entry, which appears of record, granting the new trial on terms; that neither the plaintiff nor his agent, nor his counsel, were in court at the time when the judge so directed the clerk, and they had no knowledge of the order until after the expiration of the term, but did have shortly thereafter, and that the plaintiff's agent attended this court, on Tuesday, to pay the money, by the advice of Mr. Howard, one of the plaintiff's counsel. The (540) defendant's counsel opposed the motion. His Honor allowed the motion of the plaintiff, who accordingly paid the cost and gave the bond, whereupon the defendant moved for judgment against the plaintiff according to the verdict, which motion was refused by the court. Defendant appealed to this Court. We have examined this case and do not find any error in the proceedings below. The new trial, granted at September Term, 1859, was not upon a condition precedent. The words used are not so interpreted ordinarily.
In Spencer v. Cahoon, 18 N.C. 27, it was held that a grant of administration, upon giving bond in the sum of $4,000, with J. B. and W. S. as sureties, was a valid grant of administration, although it was not stated on the record that the administrator gave bond and was properly qualified. The want of such a statement might render the grant defective and authorize the county court to annul it, but until that is done the grant must be respected as valid by the courts.
So we hold that the grant of a new trial was valid, unless the court, insisting upon the payment of costs as a condition, should, during the term, revoke the order and give judgment upon the verdict. Suffering the term to expire with the order in the condition in which we find it, and no judgment upon the verdict, in effect gives a new trial irrevocably. *Page 416 A different interpretation of the words of the order would be inconvenient, if not impracticable.
We do not think there is any error in the action of the court below upon the rule for security. The power of the court, sitting in the fall term, to make an order of this kind, to be carried into effect at the subsequent term, unconditionally and without power of modification, is not admitted. It is of the nature of such orders, too, that they are at (541) all times subject to be modified to meet the exigencies of the case. The court sitting in the spring had the unquestionable right to enlarge the rule for security on Monday, if the subject had been called to the attention of the court. And so we hold, on Tuesday the court might enlarge the rule, as of the day before, and allow the security to be put in then. This is what the court did, in substance. 2 Tidd., 769.
There is no error in the orders appealed from.
PER CURIAM. Affirmed.