
    Southerland, assignee of the sheriff of Orange, vs. Sheffield and another.
    Where proceedings in a cause are set aside oh payment-of costs, the party is not bound to pay the costs, unless_ a taxed bill is presented.
    _ A justification of hail tat the time and place specified in the notice, is good, although before an -officer othcr f.han the one named in the notice, especially if the plaintiff has not been mis led.
    Motion to set aside proceedings for irregularity. This is an action on a bail bond. At the last February term, viz. on the 6th March, a rule was granted setting aside the proceedings in this cause, upon the payment of the plaintiff’s costs of suit, and of the motion, and putting in and justifying bail in the original action within twenty days, giving eight days notice of justification. On the 18th March, notice of the rule was served on the plaintiff’s attorney, and the costs offered to be paid on a taxed bill being presented. The attorney for the plaintiff demanded a sum in gross, but refused to give a bill of the costs. On the same day, the defendant gave notice of justifying bail before Judge Fowler, a commissioner, &c. at the office of the judge, on the 26th March; on which day, the defendant attended with his bail, at the place appointed, and the latter justified before T. S. Fisk, Esq. also a commissioner, (Judge Fowler being absent from home.) On the 2d April, notice of justification and bail was served on the plaintiff’s attorney, who disregarded the justification, and proceeded in the suit on the bail bond ; to set aside which proceedings, this motion was made.
    
      Case <§• Mace, for defendant
    ' S. C. Southerland, for plaintiff.
   By the Court, Savage, C. J.

The proceedings must be set aside, with costs to be paid by the plaintiff. The defendant was not bound to pay the costs ordered by the rule of February term until they were taxed ; and the justification at the time and place appointed, although before an officer other than the one named in the notice, was good, especially as there is no allegation of the plaintiff having been misled.

Motion granted.  