Majority
p. 99Durell ads. Stansbury, assignee of sheriff of West-Chester. Delavan ads. The same.
Headnote
TTI ULES had been obtained at lafl October Term to flay proceedings on bail bond {hits, the oppofile party not having appeared to objedl. At Iail January Term an application was made to fet thofe rules aiide, on the ground that no regular notice of them had been ferved. Other objections were added as to the regularity of the application at Odlober to flay proceedings, particularly, that one of the plaintiffs had not been truly named in the bail pieces; and that the bail in the original fuit had not iuilified.
p. 100
A variety of affidavits taken on both fides were then read to the point, of merits. And it appeared that the fpecial bail and the defendants to the bail bond fuits were the fame.
The Court ordered, “ That thefe caufes be- “ ing now opened, and in the fame fituation in “ which they were the beginning of laft Term, let “ the proceedings on the bail bonds flay, on pay- “ ment of coils; on bails juftifying, if required: “ and on the terms offered by the defendant's “ counfel, viz. to corredl the name in the bail pieces *! and confefs judgment in the original fuit.”
The defendant’s attorney not underftanding that the rule went fo far, but that it merely extended to the vacating the firft rule, applied to a Judge at his chambers on the gth of February, and obtained an order flaying proceedings generally until the next Term. This order was then duly ferved on the plaintiff’s attorney, but confidering it irregularly obtained, he took no notice of it, but went on with the fuits. And now
Riggs for the defendants moved to fet afide all proceedings fince laft Term, as being contrary to the Judge’s order; and for a rule to flay all proceedings upon the bail bonds on the terms formerly offered.
Jones objects I. Recaude the Judged order was irregularly ferved, as it was not preceded by or accompanied with any notice of the motion, and be-cuide after the order made at Term, it was irregu.
p. 101
lar to apply to a Judge at his chambers. II. Be-caufe there had been no offer by the defendants to juitify or to give the cognovit actionem till the 2d of April, although the plaintiff'had riled his declaration on the bail bonds as early as the 7th of March. III. Becaufe the colls had never been paid or tendered.
Riggs in reply faid, iff, That the defendants had never underftood that the order of the Court at January Term extended to any thing further than merely to vacate the order obtained at Oóio-ber; but that, as to one objeótion that the bail had not juftified ; upon principle that could not be re-quifite, as the bail to the Iheriff had become bail above, and the plaintiff by fuing the bail bond had admitted their fufficiency. And as to the coils, no bill had ever been made, nor had they ever been demanded.
As all proceedings had been flayed in Term on certain conditions, thofe conditions ihould have been firft 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 miitaken the former de-cifion, the Court will now flay proceedings on the fame conditions as were annexed laft Term, and on payment of all fubfequent coils.
As to the other objeólion, the Court ohferved that it was the duty of the defendants to have fought the plaintiff and tendered the coils.