Majority
p. 113OCTOBER TERM, 1800. Grove ads. Campbell, assignee of the sheriff.
Headnote
TEN BROECK moved to set aside the proceedings on the bail bond, on the ground
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that the plaintiff had settled with the defendant in the original cause before the commencement of this suit, and had directed the attorney to slay proceedings, but who notwithstanding proceeded.
Emott produced counter affidavits, which were objected to because the defendant had not been, made acquainted with their contents previous to their being read in Court, but the objection was over-ruled. It appeared from them that the original cause was commenced in July vacation 1797, that in November an accommodation was made between the parties, and the plaintiff then directed the proceedings to be slayed on payment of coils. The cofts remaining unpaid, a suit was instituted on the bail bond in April vacation 1799, and the defendant put in a plea of non est factum in the October vacation following.
On this statement it was now contended that the proceedings were regular, as the attorney had no other way of enforcing the payment of the costs, and that even if it were otherwise, the defendant was too late to ask relief in this way after plea pleaded, and the subsequent delay.
Ten Broeck in reply offered counter supplementary affidavits, but the Court would not suffer them to be read, observing that a party can never support his motion by any affidavits but those on which he originally grounds it.
The Court having taken time to advise, held that
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the defendant should take nothing by his motion. They said that the attorney had no other way of compelling the payment of his costs; and besides, that the defendant had suffered such a length of time to elapse, that they would not now relieve it there had been originally just grounds for their in - terference.