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James L. and Samuel L. Taylor, Administrators of Robert Taylor, deceased, Plaintiffs in Error, v. Nathan T. Carryl, who survived William J. Ward U.S. 583 (1857)

handle is hein.slavery/ussccases0190 and id is 1 raw text is: DECEM3ER TERM, 1857. 583 Taylor et al. v. Carryl. sides, by Judge Ingersoll, then holding the court, vacating. the judgment on the payment of costs that had previously accrued, and alo upon t ondition that the case should be settled in a short time mentioned, and the motion made for a new trial, with liberty to either party to turn the case into a bill of exceptions, which right had been reserved at the inal. The case was settled accordingly, the motion for a new trial heard and denied, a bill of exceptions settled and signed, agreeably to the order of the 19th December, and filed in the office of the clerk of said court. Since the motion for a new trial, and the settlement of the bill of exceptions, the attorney for the plaintiff has issued an execution on the judgment of the 12th December, claiming it to be still in force, on the ground that the condition had not been complied with in respect to the payment of costs. A motion was subsequently made by the defendants to set aside this execution and the judgment afore- said unconditionally, *hich was granted by the court. The present motion to this court is for a rule to show cause against the court below, why a mandamus should not issue to vacate this last order. The* ground upon which the court below placed its decision for setting aside the judgment ahd execution unconditionally, is, that the attorney for the plaintis, by not making out his bill of costs, procuring a taxation, and demanding them pre- vious to the hearing of the motion for a new trial, thereby im- pliedly consented to waive this condition, and cannot after- wards set it up for the purpose of invalidating the order of the 19th December, vacating the judgment. We concur in this view of the court, and we are also satisfied, from the course of the proceedings preparatory to the motion for the new trial, the hearing of that motion, and the turning of-the case into a bill of exceptions with a view to a writ of error, it was the under- standing of both parties that the judgment of the 12th Decem- ber was to be considered as vacated, and that a new one be entered for the plaintiffs, if a motion for a new trial was desired. The court is of opinion, therefore, that the facts presented upon this motion for a mandamus are not such as entitle the plaintiffs to a rule to their cause, and it must therefore be denied. JAMES L. AND SAMUEL L. TAYLOR, ADMINISTRATORS o' RoiERT TAYLOR, DECEASED, PLAINTIFFS IN ERROR, v. IN ATiAN T. CARL- RYL, WHO SURVIVED WILLIAM J. WARD. Where a vessel had been seized under a process of foreign attachment issuing from a State court in Pennsylvania, and a motion was pending in that court for an order of sale, a libel filed in the District Court of the United States, for mariners

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