Majority
p. 162Francis Huguet, Assignee of the Sheriff, v. James Hallet.
Headnote
THIS was a motion in an. action on a bail-bond to set aside the proceedings and execution sued out. It appeared that soon after the. bail-bond was prosecuted,
p. 163
the attornies for both parties had entered into an agreement, in the nature of a rule, to stay proceedings in the bail-bond suit on the usual terms. That the defend-' ant had accordingly filed special bail in the original suit, and had given the regular notice, but had not paid the costs of this suit, as by the terms of the rule he was bound to do. The plaintiff, on special bail being entered, went on in the original suit, and in July, one thousand eight hundred and two, obtained final judgment, on which execution was issued, and thereupon satisfaction obtained. After this the plaintiff' went on with this suit, entered a default, and in January last obtained final judgment, and issued an execution, on which the sheriff, by direction of the plaintiff’s attorney, levied the costs only, but still had them in his hands. The defendant in the last vacation obtained an order of his honour, Judge Radcliff, to stay all proceedings.
The application now was, that the sheriff restore to the defendant so much of the money in his hands as exceeds the costs which were due on the bail-bond suit when the rule to stay proceedings was entered into.
The counsel for the defendant produced an affidavit, by which it appeared, that the attorney for the plaintiff had frequently given the attorney for the defendant verbal notice that he was proceeding with the bail-bond suit. But it did not appear that any bill of costs had been presented, or any demand of a bill of costs made on the one side, or of the costs on the other.
p. 164contended, that special b.ail being filed under the rule, with an intent to stay the proceedings on the bail-bond, the plaintiff could, not accept it or avail himself of it, unless it was to have that operation. That the plaintiff could not proceed with both suits : at most he had but an option to proceed with either, but having elected to pursue the, original suit, he thereby precluded himself from going on with the. other. That after the defendant had filed special bail the plaintiff might have gone on with his original suit, and the court would probably have compelled him, by attachment, to pay the costs in that on, the bail-bond, up to that time. That there was no precedent for this double proceeding, which was a strong evidence that it could not • be right.
Coldeji, for the defendant,
Stuyvesant, contra.
It was the duty of the defend-ant to have paid the costs on the bail-bond, when he gave notice of special bail. The plaintiff had no. other possible remedy for his costs than the mode he has adopted, and as the defendant’s irregular conduct has compelled the plaintiff to proceed, the whole costs are due from the defendant, and are nothing more than the result of his own irregularity and obstinacy.
This is a motion to, set aside proceedings on the bail-bond on the facts stated by the affidavit. ' The suit was commenced in Januaryt
p. 165
1802, returnable in April. Afterwards, in May, the action on the bail-bond was brought. Shortly after, the plaintiff’s attorney received notice of bail in the original action and then delivered a declaration. He went on to judgment, and proceeded on the bail-bond to recover costs. The plaintiff’s attorney states that he called on the attorney of the defendant, and requested him to pay the costs on the bail-bond, which he did not do, though no regular bail had been put in. On this, proceedings were continued in the bail-bond suit to judgment, on which an execution has issued for the costs. The application is to set aside the proceedings and execution in the bail-bond suit. It is established, with respect to tendering costs on a rule to stay proceedings on the bail-bond, that it is the defendant’s duty, when the rule is obtained, to plead and tender costs.[1] There was no rule to stay proceedings : but an equivocal agreement in the place of that rule, and should receive the same construction. It was the duty of the attorney of the defendant to plead and pay costs. This would have been ordered had he not proceeded in the original suit: but when he did that, it was a waiver of his proceedings on the bail-bond, and a waiver of the right to a plea from the opposite side. The proceedings must be set aside on payment of costs up to the time when special bail was entered and notice of that bail given.[2]
* Cannon, Manucaptor, ads. Cathcart, ante, p. 84
† † See Grou ads. Campbell, ante, p. 115.