Alexander v. Carpenter. ALEXANDER vs. CARPENTER. The plaintiff's attorney is not liable for the defendant's costs, where the plaintiff removed from the state pending the suit, but only where he was a non-resident when it was commenced. A. K. Hadley, for the defendant, moved for an order that the plaintiff's attorney pay one hundred dollars of the costs which had been adjudged to the defendant in this action, on the ground that the attorney had proceeded in the cause after the plaintiff had removed out of the state, and without filing secu rity for costs. The plaintiff was a resident of this state at the time the suit was commenced; but soon after removed out of the state. The suit went on, and the defendant finally had judgment to recover his costs, which were taxed at $111,25. J. Pierson, contra. costs. By the Court, BRONSON, Ch. J. Prior to 1830, there was neither any statute nor common law which rendered the attorney liable for costs, when he commenced a suit for a non-resident plaintiff, nor when he proceeded with the suit after the plaintiff had removed from the state, without filing security for Both of those cases were provided for by the 14th rule of January term, 1799. In the late revision of the laws, the legislature seems to have thought that the court had been too hard upon the lawyers, and it was provided that the attorney should be liable for costs when the plaintiff should not be a resident of the state at the commencement of the suit. But he was not made answerable where the plaintiff removed out of the state after the suit was commenced. (2 R. S. 620, § 1, 7.) After the legislature undertook the regulation of the matter, the rule which has been mentioned was abolished; and since 1830, there has been no law nor rule of court making the attorney liable for costs in a case like this. Motion denied. Grosvenor v. Rogers. CUSICK VS. COHEN and another. A defendant in replevin who excepts to the sureties taken by the sheriff need not enter the exception on the bond or on the writ, but may file it in the clerk's office. P. Cagger, for the defendants, moved for judgment of discontinuance in replevin, because the plaintiff's sureties taken by the sheriff on the receipt of the writ had not justified. The defendants filed an exception to the sureties with the clerk of the court, and gave due notice. J. Percy, for the plaintiff, objected that the exception was not sufficient. It should have been entered on the bond taken by the sheriff, or on the writ of replevin. By the Court, BRONSON, Ch. J. The bond remains with the sheriff, and I do not think the defendant is obliged to seek him in order to make an exception to the sureties; and I see no reason for requiring the exception to be endorsed on the writ. It is enough that it be filed with the clerk of the court. The defendants are regular, but the plaintiff may be relieved on terms. Ordered accordingly. GROSVENOR and another vs. ROGERS and others. In a suit on a bond in a penalty of more than $50, where there has been a trial and a report of referees assessing the damages at less than $50, the plaintiff will not be compelled to accept a tender of the damages, without costs, upon the footing of a settlement within the equity of the statute, (2 R. S. 616, § 21,) but may. notwithstanding the tender, enter up judgment for the penalty with costs. DEBT on bond, in the penal sum of $82,64, conditioned that Rogers, who had been committed to the jail limits in the city Grosvenor v. Rogers. of New-York, on a precept for the sum of $41,32, should remain a true and faithful prisoner, &c. The plaintiffs for whose benefit the precept was issued, took an assignment of the bond and commenced this action in January, 1845, and in their declaration alleged for a breach of the condition of the bond that Rogers did not remain a true and faithful prisoner, but escaped. The suit was defended on the ground that there had been no escape. After the cause had been several times upon the circuit calendar, it was referred to a sole referee, who, after twenty meetings, reported in favor of the plaintiffs, on the 18th of July last, and assessed their damages at $47,32. The plaintiffs' costs in the suit by this time amounted to about $200. On the 25th of July, the defendants tendered the plaintiffs $47,50 in full settlement and discharge of the action; but the tender was refused. I. Harris now moved that the defendants be allowed to pay the sum of $47,50 into court, and thereupon that all proceedings on the part of the plaintiffs be perpetually stayed. He cited 2 R. S. 616, 21; Wells v. Feeter, (5 Wend. 133;) Howe v. Goodrich, (18 Wend. 560.) M. T. Reynolds, for the plaintiffs, cited The People v. Sternburgh, (1 Denio, 635.) By the Court, BRONSON, Ch. J. The question is, whether the plaintiffs must accept the damages and lose the costs; or whether they are at liberty to proceed and enter judgment for the penalty of the bond, which will carry costs. The statute only denies costs when a suit upon contract "is settled before judgment, and the sum actually due and admitted" is not sufficient to carry costs. This language plainly imports the assent of both parties. But proceeding on the equity of the statute, the plaintiff has sometimes been compelled, in actions upon penal bonds, to accept the amount due by the condition, without costs. But it has been in cases where the amount could be ascertained by mere computation: and where the plaintiffs' Sandford . Sinclair. right to recover had not been litigated before the tender was made. In this case the defendants have contested the plaintiffs' right to recover for a year and a half; and now, after a report against them, and on the eve of a judgment, they propose to pay the damages assessed by the referee, and leave the plaintiffs to bear the costs of the litigation. The case is neither within the letter nor the equity of the statute. Motion denied. SANDFORD VS. SINCLAIR. 1 plea puis darrein continuance should be pleaded on the first day of the next term after the new matter of defence arose. But if a circuit intervenes before the term, it must be pleaded there in order to prevent a trial. When pleaded seasonably it is matter of right and cannot be rejected either at the circuit or the term. When offered out of time the plaintiff may refuse to receive it and the judge at the circuit may disregard it. Where the defendant has allowed the time for putting in such a plea to elapse, though he may be relieved upon terms, he will not after a delay of three years be permitted to put in the plea nunc pro tunc. And where the defendant having obtained a discharge under the bankrupt act after issue joined, refused to allow the plaintiff to discontinue without costs and success. fully resisted a motion made by the plaintiff for that purpose, and then after considerable delay applied for leave to plead his discharge puis darrein continuance; HELD, that he had elected to abide by his first defence and was not entitled to relief. SEVERAL Suits in favor of the plaintiff, against different defendants, all turning on the same question, were depending in this court; and on the trial of one of the actions, against Halsey, in June, 1842, the plaintiff was nonsuited. A stipulation was thereupon entered into in all of the suits, of which this is one, that in case a new trial in the Halsey suit should be denied on a motion which the plaintiff proposed to make on a bill of exceptions, then the defendants in all the other suits might enter judgment, as in case of nonsuit, unless the plaintiff should bring error. Sandford v. Sinclair. If a new trial should be granted in the Halsey suit, then the agreement was, that the causes "shall be considered as standing for trial as they now do." If a new trial should be denied in the Halsey suit, and the plaintiff should bring error, then the other causes "shall stand as they now do until the decision of the said cause of Halsey" in the court of errors; if the judgment of the supreme court should be affirmed, then the defendants in the other suits might enter judgments as in case of nonsuit; but if the judgment should be reversed, "then the said other causes shall stand for trial as they now do." In May term, 1843, a new trial in the Halsey suit was denied by this court; and the plaintiff brought a writ of error. On the 17th July, 1843, the defendant in this suit obtained his discharge as a bankrupt. In September following, the plaintiff addressed a note to the defendant, saying, he had heard of the discharge; that if the defendant availed himself of it in his suit, it would entitle the plaintiff to discontinue without costs; that the plaintiff was willing at once to dismiss the suit, or if the defendant would not set up his discharge, the plaintiff was content to risk the event; and that unless the defendant consented to a discontinuance, or waived his discharge, the plaintiff would move the court for leave to discontinue. The defendant consulted his counsel on the subject of the note, but returned no answer; and the plaintiff after wards made a motion for leave to discontinue without costs, which motion was opposed by the defendant, and was denied in December, 1843, on the grounds stated in the report of the case. (6 Hill, 250.) In December, 1845, the judgment of this court in the Halsey case was reversed by the court of errors. On the 1st of June last, the plaintiff noticed this cause for trial, at the Osvego circuit, which was held on the 22d day of that monte 19th June, the defendant filed and served a plea, purporting to be puis darrien continuance, setting up his bankrupt discharge; and the plea was verified by affidavit. The plaintiff refused to receive the plea; and the parties went to the circuit. The de fendant there tendered another plea puis &c. of his discharge, |