
    Henry F. Mabbett and Wm. Mulligan agt. Wm. A. Kelly and John C. Kelly.
    Where a judgment is entered for the penalty in a hail bond suit, the damages should be assessed in the original action. (2 B. S. 358, §§ 12—14.)
    If the damages are assessed in the bail bond suit, it is a void proceeding, of whitih the defendant in the bail bond suit is not affected, unless execution is issued for the damages assessed.
    Taxing costs without notice is a ground for asking a re-taxation; but not for setting aside the judgment.
    
      February Term, 1846.
    Motion by defendant Wm. A. Kelly, to set aside the writ of inquiry, judgment record and other subsequent proceedings in this cause, for irregularity.
    This suit was commenced upon a bail bond executed by the defendants to H. Wetherby, Esq., sheriff of Onondaga, in the penalty of $1,000, conditioned that John 0. Kelly should appear in an action of trover commenced by the plaintiffs against John C. Kelly, by capias issued out of the court of common pleas of Onondaga, by putting in special bail in twenty days after the return day of the writ, &c. The defendants appeared in this action and demurred to the declaration, and judgment was rendered in favor of the plaintiffs on the demurrer as frivolous, at the last October term of this court. On the 7th of November last, a writ of inquiry of plaintiffs’ damages was executed on notice to defendants’ attorneys in this suit. On the 24th of November writ of inquiry was filed, and on the 29th of November judgment was perfected. The papers for the motion stated that no declaration had been filed in the original action, that the writ of inquiry was in the suit on the bail bond; also that no notice of taxation of costs was served. One of defendants’ attorneys stated that he appeared on the execution of the writ of inquiry solely, for the purpose of objecting to the regularity of the proceedings; that he objected to plaintiffs’ proceedings as irregular; that he did not appear for the purpose of cross-examining plaintiffs’ witnesses, although he asked some questions of one of the witnesses. Plaintiffs’ papers stated that one of defendants’ attorneys did appear and cross-examine a witness. ^Defendant moved on the ground that the writ of inquiry should have been issued in the original action in the Onondaga common pleas; also on the ground that damages could not be assessed, until a declaration had been filed in the original action in the common pleas, and on the ground that no notice of taxation of costs had ever been given in the cause.
    Plaintiff claimed that the judgment, entered for the penalty on the demurrer as frivolous, was regular; plaintiff had a right to enter up that judgment when it was rendered, before any damages were assessed; that the writ of inquiry should have been executed in the original action, but it was a mere irregularity, which it was insisted defendant had waived by appearing and cross-examining a witness. If the writ of inquiry was a nullity, then there was no necessity to move to set it aside, until an execution had been issued for the damages found by it. But no execution had been issued. The plaintiff might yet file his declaration and assess damages in the original action. As to the notice of taxation of costs, it was insisted it was not a ground for disturbing the judgment, but only for a motion for re-taxation, which the defendants did not ask.
    Mr. Comstock, defendants' counsel.
    
    Noxon & Co., defendants' attorneys.
    
    A. Taber, plaintiffs' counsel.
    
    Forbes & Sheldon, plaintiffs' attorneys.
    
   Bronson, Chief Justice.

Judgment has been properly entered on the bail bond for the penalty. But the plaintiffs have made a mistake in executing a writ of inquiry of damages in the bail bond action. (2 R. S. 358, §§ 12,14.) But this void proceeding has not injured the defendants. The plaintiffs have not acted upon it; no execution has been issued on the judgment. Before that is done the plaintiffs will probably assess damages in the original action. If they do not, it will be time enough then to move. At present, there is no irregularity which has injured or can affect the defendants.

Taxing costs without notice is a ground for asking a re-taxation ; but not for setting aside the judgment. Motion denied with costs.  