If the plaintiff proves all that is laid in his declaration, he ought not to be nonsuited. If the declaration is insufficient, the defendant may avail himself of the defect by demurrer; and if he succeed, he will be entitled to his costs. If he neglects to do that, he cannot avail himself of the objection at the trial, but will be put to his motion in arrest of judgment; in which case neither party will be entitled to the costs which have been unnecessarily incurred by the neglect of the defendant to bring the question of law before the court, in the first instance. (Cameron v. Reynolds, Cowp. R. 407.) The only ground for a non-suit at the trial must be, that the proof is not sufficient to support the plaintiff’s declaration.
In this case, the only averment in the counts on the special agreement is, that the taxable costs, which the defendant had agreed to pay, amounted to the sum of sixty dollars and fifty two cents, of which the defendant had notice. I think this was a case in which the defendant could not be required to pay until he had notice from the plaintiff of the amount of his taxable costs, as it was a case in which the actual amount was particularly within the knowledge of the plaintiff. The defendant, not being a party to the suit in which those costs accrued, could not be presumed to know the amount until he was informed thereof by the plaintiff. The plaintiff on the trial would have been bound to prove the averment in his declaration; but I think the court erred in requiring him to shew that he had served a copy of his taxed bill of costs on the defendant, and demanded payment thereof, before the commencement of his suit. There was no such averment in *164the declaration. If the defendant had received notice of the amount from the plaintiff, it then became his duty to pay the same immediately; and the commencement of the action was a sufficient demand. The court nonsuited the plaintiff, because he could not shew what, by law, he was not required to prove, and without giving him an opportunity to prove what he had averred in his declaration.
I think the action on the special agreement was properly brought in the name of the person with whom it was made. There was no privity between the defendant and the attorney of Stevens. The agreement was not made for the attorney’s benefit, but for the benefit of Stevens, who was liable to him for the costs, if they had not already been paid. He was merely the agent of Stevens to receive the money, and could only have retained out of the same the amount of his own costs. The residue of the taxable costs would belong to the plaintiff.
Besides, the note which had been given in evidence was a valid subsisting demand, to which there was no objection. That, of itself, would have been a sufficient answer to a motion for a nonsuit. I presume the court had entirely overlooked that piece of evidence when they nonsuited the plaintiff. If the application for the nonsuit had come from the defendant, so that the plaintiff could have had an opportunity to urge that as an objection, and omitted to do so, Ms omission might perhaps be considered as a waiver of his rights ; as the defendant might have had some good defence to the note. But, under the circumstances of this case, I think the plaintiff in the court below is entitled to avail himself of that objection to the judgment of nonsuit, and his bill of exceptions is broad enough to reach it. For these reasons, the judgment of the supreme court, reversing the judgment of the common pleas, and awarding the costs of the proceedings in error, ought to be affirmed.
The only remaining objection is to that part of the judgment of the supreme court which awards restitution of the costs recovered and collected by Safford on the judgment of nonsuit in the court of common pleas. It was undoubtedly the former practice to award restitution on the reversal of *165the judgment, only where it appeared by the return of the execution that the damages dr costs erroneously awarded by the court below had been actually levied and paid over to ¿he defendant in error. And if the fact did not appear upon •the record, the party was put to his scire feci enquiry to ascertain the fact; upon the return of which, restitution was awarded. (Tidd’s Pr. 906. 2 Salk. 588.) But I believe the modern practice has been, to apply to the court, on affidavit, for leave to suggest the fact on the record, and upon which judgment of restitution is awarded. I see no objection to this course, as the court would undoubtedly permit the defendant to traverse the suggestion, if there was any doubt of its truth.
I have not examined into the correctness of this practice, as the question is not properly before us; it never having been submitted to the supreme court for their decision. As the suggestion stands upon the record, it appears that the fact of the collection of the judgment was satisfactorily proved to the court j whether by the return of the execution, or in what other manner, is not shewn. I presume it was done by the attorney of Stevens, as a matter of form merely ; and if that was irregular, the plaintiff in error should have submitted the question directly to the supreme court, by an application to strike it out. The judges have not been called upon to give their reasons for this judgment of restitution; and I presume the question has never been passed upon by them. There is therefore no judgment of the supreme court upon the point. In Colden v. Knickerbacker, (2 Cowen’s R. 31,) this court decided they would not reverse a judgment of the supreme court for mere formal defects in the record, which had not been submitted to that court for their actual decision. And in Henry v. Cuyler, (17 Johns. R. 469,) and Gelston v. Hoyt, (13 Johns. R. 361,) this court would not even examine errors in substance, which the plaintiffs in error had not distinctly submitted to the actual adjudication of the court below.
I am of opinion that the judgment of the supreme court in this case should be affirmed, with costs.
*166This being the unanimous opinion of the court, the jucfg" ment of the supreme court was thereupon affirmed, with costs,