Emerson

— In October, 1873, an order was entered in the court below granting the defendant a new trial, upon condition that he pay to the plaintiff all the costs which had theretofore accrued in the action. In February, 1874, the remittitur from this court, affirming the order, was filed in the court below, and no part of the costs having been paid or tendered, the plaintiff’s attorney, on the twenty-fourth day of February, 1874, served a written notice upon the attorney of the defendant, to the effect that he would on the second day of March next thereafter apply to the court below for an order declaring the order granting a new trial inoperative, by reason of the failure of the defendant to comply with the condition therein mentioned, and that execution issue upon the judgment theretofore rendered in the cause. To this notice the defendant’s attorney does not appear to have made any response, and pursuant to the notice the application was made to the court — no opposition being then made — and the motion was taken under advisement by the court, and the cause continued for the term. Subsequently, on the next day but one thereafter, the court being still in session, and the attorney for…