The opinion of the court was delivered by

After verdict for the plaintiff the court, on motion, granted a new trial on payment of costs by the defendant. Awarding a new trial on terms, is the every day practice in England, and there can be no doubt it is a power inherent in the courts of this State.

Had the defendants refused to pay the costs, on a rule granted for that purpose, the court might have rendered judgment oh the verdict; which would be in the nature of a penalty, for a noncompliance with the order of the court. Instead of applying to the court in the first instance, or taking any other means to enforce compliance with the order, the plaintiff by entering a rule for a commission, treated the cause in the same manner as if a new trial had been granted without condition. Although this proceeding may not prevent him from compelling the payment of the costs by attachment; yet by this step, he waives the right of making the payment of costs a condition precedent to a new trial. At the April term, 1819, the court, on motion, entered a rule on Daniel Devinney to pay the costs of the suit, up to the time of the new trial. At the April term, 1820, the court also, on motion, granted a rule, to show cause, why an attachment should not issue against the defendant, for not paying the bill of costs.

Why these rules werp not enforced, we have not been informed. We have no evidence that they were abandoned by leave of the court; but the contrary appears. On the 26th February, 1822, we have the following rule: “ Rule, that judgment be entered for plaintiff, by the first day of June next, unless the costs be paid, agreeably to the terms on which the new trial was granted.” And on the 3d of June, we have this entry: “ The defendant having neglected to pay the costs, therefore judgment for plaintiff agreeably to rule.” It is impossible to inspect the record, without perceiving that the rule on which judgment was given, was entered in vacation without leave of the court, and also that judgment was signed in vacation, without any proof whatever of the service of the rule on the defendant. This is a practice we cannot sanction. The rule for the payment of costs, on judgment, is an act of the court, which cannot be entered in vacation; but must be granted by the court, on motion in open court: in them,.not in the party, is vested the power of fixing the time for the payment of costs, on the penalty of judgment in case default be made. It is also a first principle in the administration of justice, that the party on whom the rule is granted, shall have reasonable notice.

Judgment reversed, and a venire de novo awarded.