¶1The mistake on which the motion in the court below was founded, appears to have been one for which both parties were in some degree responsible, and fully 'supports the order to open the judgment. A^d the only question here is upon the terms imposed on the appellant.
¶2The payment of the costs of the former appeal in this court was a proper condition of the order. This was so held at the present term in Mc Williams v. Bannister, ante, p. 301.
¶3Nothing disclosed by the record would warrant us in holding that it was an abuse of discretion by the court below, to require payment of so much as the answer admits to be due. But the order should not have required the payment of more. *478The appellant should not be required to pay, either to the respondent or into court, any sum of which he pleads payment. Magoon v. Callahan, 39 Wis., 141.
¶4No question was made upon the argument, or appears properly to arise on this appeal, under sec. 6, ch. 61, R. S., revised by ch. 157 of 1872.
¶5By the Cowt. — So much of the order as requires the appellant to pay into court the sum of $2,500, is reversed, and the cause remanded with directions to the court below to modify the order so as to conform to this opinion.