The opinion of the court, was delivered by-

Whether the reasons for á non-suit were sufficient, is not' how for the consideration of this Court, but whether the court had the power to order a non-suit unless the plaintiff would pay the costs, is the true question.

The plaintiff accepted of the terms offered by the court, reserving the right to inquire into the power of the court to order a non-suit nisi, and must be bound by his acceptance, if the court was competent to annex such a condition precedent to the restoration of the case to the docket.

No doubt can be entertained of the power of the court to annex the condition, and order the non-suit, nisi; at least since'the case of Steen, vs. Drake and Cavanah, 2 Bay, 431. In that case, the court ordered the cause to stand over and the plaintiff’s to pay the costs within thirty days, or be non-suited. The cost? not being paid within the thirty days, judgment of non-suit was signed. — And upon an appeal to this court, all the judges held the non-suit properly ordered; and took the occasion to lay-down the rule, how costs ordered in a cause in transitu, are to be paid which may be seen by referring to that adjudication. But independently of this decission, if the plaintiff’ were to sue-ceed in setting aside the condition of his paying the costs or being non-suited, it would follow that the non-suit must be entered up; in which event he would be obliged to pay the costs s and the verdict of course be set aside,. The motion is dismissed.