Moir & Norton v. Brown , 9 How. Pr. 270 ( 1853 )

C. L. Allen, Justice.

Under the rule of the court of 14th January, 1799, attorneys were made liable for costs to the amount of $100, where the plaintiff was a non-resident at the time of the commencement of the suit, or became such during its pendency, unless security for costs was filed. By the Revised Statutes of 1830, the liability of the attorney seems to be confined to cases where the plaintiff does not reside in the state, when the suit is commenced. Bronson, Ch. J., says in Alexander agt. Carpenter, (3 Denio, 266,) that the legislature thought the old rule too hard upon the lawyers, and it was provided that the attorney should not be liable in cases where the plaintiff removed out of the state after the suit was commenced. After the revision, the rule was abolished, and since 1830 there has been no law or rule of the court making the attorney liable, except under the 2 R. S. § 7, which declares that attorneys can-only be made liable in those cases where security could originally he required.

The papers in this case do not show that the plaintiffs were non-residents of the state when the actions were commenced. The attorney swears, that he is informed and believes, that they are non-residents, and that they reside in the state of Ohio. They may have resided here at the time of the commencement of the suits, and removed to Ohio since. The party, should show affirmatively in his affidavit the facts which entitle him to the relief for which he moves. Constantine agt. Van Winkle. (2 How. 273, and other cases.)

This conclusion disposes of the motion. There are other grounds taken in opposition, and among them, that this action being in the nature of replevin, and the requisite undertakings under § 209 of the Code having been executed, that the defendant could not require security for costs, and that the attorney can only be made liable where such security can- be required. It is very questionable whether the remedy of the defendant in this case is by motion against the attorney. (9 Wend. 462; 4 How. 93.)

I do not, however, pass upon that question, but shall deny the motion without prejudice, that the defendant may renew it on additional papers, if he shall be so advised.

Motion denied, with $7 costs.