The only rule granted by the court, on the plaintiffs application to put off the trial, was the usual rule in such cases, that the cause go off on payment of the costs of the term by the plaintiff. These costs were payable instanter, their payment being the condition on which the trial was put off; and if they were not paid, the court would have allowed the defendants, if they had themselves noticed the cause as they may do under the code, to have brought it on for trial. The defendants
The defendants however, instead of insisting upon bringing on the cause, or asking for a rule on the plaintiff requiring him to pay them, of their own motion draw up separate rules in their own favor, requiring the plaintiff to pay to each of them the costs of the term and witness fees. This they had no right to do. Even if the rule actually granted by the court, imposed on the plaintiff as a condition of the postponement of the trial the payment of costs to each of the defendants, it plainly did not require him to do so; and as it is not pretended by the defendants that any other rule was granted by the judge than merely that the cause go off on payment of costs, the rules taken out by the defendants Smith & Brush were entirely unauthorized. They are therefore set aside as null and void. And as a year has elapsed since the cause was put off, and neither of the defendants have applied for an order requiring the plaintiffs to pay the costs, they must abide the event of the suit. The disposition made of the principal question involved in this motion, renders it unnecessary to decide whether under the rule postponing the cause the defendants are entitled each to a separate bill of costs. 11