Francis Huguet, Assignee of the Sheriff, v. James Hallet, 1 Cole. & Cai. Cas. 162

Per Curiam. 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 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.

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. Cannon, Manucaptor, ads. Cathcart, ante, p. 84 See Grou ads.

Campbell, ante, p. 115.