majority">Frazer, J.

This was a motion for a new trial by the heirs at law of a deceased plaintiff in ejectment, made within one year from the rendition of the first judgment in the cause. The costs were paid, we may fairly assume from the record, just before the motion was made. The motion was refused. It appeared that a similar motion had been made by the oi’iginal plaintiff at the term at which the judgment was rendered, which was granted upon condition that the costs be paid within sixty days, which was not done. "Was the court below correct, under the circumstances, in refusing the motion last made?

By the code, (§ 601) it is enacted that in such cases, at any time within one year after rendering the judgment, upon the application of the defeated party, and, if it be the plaintiff, upon the payment of all costs, the court “shall vacate the judgment and grant a new, trial.” It is not easy to conceive of language more imperative. If the costs be paid, the court has no discretion, and the motion is of course. It is of right that the party takes the new trial.

But it is contended that by taking the first motion, with a condition that the costs be paid within sixty days, the plaintiff’ waived or lost the right which the statute conferred. Of course the argument is not made in these terms; but it must, when analyzed, be this, or else it is nothing to the purpose. If not a waiver of the statutory right, then that right remained, and should have been allowed by the court. If the condition — payment of costs within sixty *354days — had been one which the court had the right to impose, then the failure to perform it, as in Moberly v. Davar, 5 Blackf. 409, would have worked a forfeiture of the right. But in this case, the statute gave one year for the payment of costs, and the court could not bind the party by an order that it be done within a shorter period. And if it be argued that taking the motion upon the terms ordered was nevertheless an assent to the terms, which should be held to have the force of a contract,- the conclusive answer is that there was no consideration to support it, and it was not therefore any obstacle to an application made subsequently under the statute. Eor was there anything in it to operate by way of estoppel in pais. It had no essential element of that. It implied nothing by which the opposite party could be supposed to have been induced to act to his injury.

J. Collins and S. A. Day, for appellants.G. V. Howie and B. W. Weir, for appellees.

An argument for the appellees is based upon the latter clause of the section of the code already alluded to, which provides that “ the .court' shall grant but one (new) trial, unless for good cause' shown.” This argument assumes that one new trial had been granted, a proposition which cannot be maintained. A grant of a new trial, which is to be operative upon the performance of a condition subsequent, is nothing, if the condition be not performed.

The judgment is reversed, with costs, and the cause remanded for a new trial.

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