Majority
p. 102Durell ads. Stansbury, Assignee of the Sheriff of West-Chester. Delavan ads. The same.
Headnote
RULES had been obtained at last October term to stay proceedings on bail-bond suits, the opposite party not having appeared to object. At last January
p. 103moved to set aside all proceedings since last term, as being contray to
term an application was made to set those rules aside, on the ground that no regular notice of them had been served. Other objections were added as to the regularity of the application at October, to stay proceedings,, particularly, that one of the plaintiffs had not been truly named in the bail-pieces ; and that the bail, in the original suit, had not justified.
A variety of affidavits taken on both sides were then read to the point of merits. And it appeared that the special bail and the defendants to the bail-bond suits were the same.
The court ordered, “ That these causes being now £< opened, and in the same situation in which they “ were the beginning of last term, let the proceedings <£ on the bail-bonds stay, on payment of costs ; on “ bail’s justifying, if required: and on the terms of- ££ fered by the defendant’s counsel, viz. to correct the ££ name in the bail-pieces and confess judgment in the ££ original suit.”
The defendant’s attorney not understanding that the rule went so far, but that it merely extended to the vacating the first rule, applied to a judge at his chambers on the 5th of February, and obtained an order staying proceedings generally until the next term. This order was then duly served on the plaintiff’s attorney, but, considering it irregularly obtained, he took no notice of it, but went on with the suits. And now
Higgs, for the defendants,
p. 104the judge’s order; and for a rule to stay all proceedings upon the bail-bonds, on the terms formerly offered. 1. Because the judge’s order was irregularly served, as it was not preceded by or accompanied with any notice of motion, and because, after the order made at term, it was irregular to apply to a judge at his chambers. 2. Because there had been no offer by the defendants to justify, or to give the cognovit actionem till the 2d of April, although the plaintiff had filed his declaration on the bail-bonds as early as the 7th of March. 3. Because the costs had never been paid or tendered. said, first, that the defendants had never understood that the order of the court at January term extended to any thing further, than merely to vacate the order obtained at October. As to the second objection, that the bail had not justified, that, upon principle, could not be requisite, as the bail to the sheriff had become bail above, and the plaintiff, by suing the bail-bond, had admitted their sufficiency. And as to the costs, no bill had ever been made out, nor had they ever been demanded.
Jones objects,
Higgs, in reply,
As all proceedings had been stayed in term, on certain conditions, those conditions should have been first complied with, to entitle the party to any benefit under the rule ; and it was certainly irregular to apply afterwards to a judge at his chambers for any further order. But as the defendants appear to have mistaken the former decision, the court will now stay proceedings on the same condi
p. 105
lions as were annexed last term, and on payment of all subsequent costs.
, As to the other objection, the court observed, that it was the duty of the defendants to have sought the plaintiff and tendered the costs.