Huguet v. Hallet

1 Cai. Cas. 54, 1 Cole. & Cai. Cas. 162

Opinion

Per Curiam.

This is a motion to set a side proceedings on the bail bond on the facts stated by the affidavit. The original suit was commenced in January, 1802, and the writ 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 issued his execution, which was fully paid. After this he 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. ' 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.

Footnotes

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(a) There was no rule to stay proceeding: but an equivocal agreement in the place of that rule, am should receive the same construction. It was the duty dalhe attorney of the'defendant to plead and pay costs. The would have been ordered had the plaintiff not proceeded in the original suit; but when he did that, it was a waiver(a) of his prooedings on the bail bond, and a waiver of the right to a plea in the suit upon it. 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.

On payment of costs up to notice of bail.[1]

Motion granted.

Cannon, manucaptor, ads. Cathcart, Cole. Cas. 80. Exoneretur ordered on payment of costs; no demand or bill present. Plaintiff went on. /Per Curiam. The costs should have been paid wlhout waiting a demand or bill. S. P. Durell v. Stansbury. The relief now to be, on paying of costa ordered, those of subsequent proceedings, and assisting this application.

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See New York Code of Procedure, sec. 191.

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) The general rule is, that proceeding in the original suit is a waiver of the bail bond, and vice versa, proceeding on the bail bond to judgment and execution a waiver of the original suit. Beecker v. Simmons, 7 Johns. Rep. 119. But where the plaintiff merely settles the original suit, if the costs on the bail bond be not paid, the bail bond suit may be continued for their recovery. Calkin v. Norton, Caines’ Prac. 91, from MS. Kent, C. J. So for the recovery of them in the original suit, if it has been settled on a promise to pay them, and that promise never performed. Groves ads. Campbell, Cole. Cas. 113. But note, to warrant a proceeding on the bail bond, an exception to the bail above must, as has beeii ruled, be entered. Phelps ads. Ferris, Cole Cas. 95. Qu., however, as to this being in all cases law, if the decision in Dubois v. Phillips, (5 Johns. Rep.) be the rule. It is a general rule that when a suit is settled on an agreement to pay the costs, if they be not paid accordingly, the court will not stay proceedings, when continued for their recovery. Therefore, if an action against the acceptor of a bill be settled, on an agreement that the defendant shall give a new bill, and warrant of attorney to secure the amount, and also pay the costs, if he give the new bill, execute and deliver the warrant of attorney, but do not pay the costs, an action may be brought on the old bill, while the new is outstanding in the bands of a third party. Norris v. Aylett, 2 Camp. 329.