Fearn v. Gelpcke , 13 Abb. Pr. 473 ( 1862 )

Monell, J.

—By the standing rule of the Supreme Court, adopted at the January term, 1799 (Rule 14), it was provided, that upon application of the defendant, a non-resident plaintiff might be compelled to file security for costs; and that until such security was filed, the plaintiff’s attorney was liable for costs to the amount of one hundred dollars. The provisions of this rule were incorporated into the statutes upon their revision c in 1828.

Under the rule, as it existed prior to the statute, it was the constant practice of the court to exercise a discretion in granting or refusing the order. (Ketcham a. Clark, 4 Johns., 484 ; Jackson a. Bushnell, 13 Ib., 330.) So, under the Revised Statutes, it has been held that the granting the order is not the absolute right of the defendant, but rests in the discretion of the court, whether they will grant it or not. (Robinson a. Sinclair, 1 Den., 628 ; Florence a. Bulkley, 1 Duer, 705 ; Swan a. Matthews, 3 Ib., 613.) In Robinson a. Sinclair, the court say, “ the statute is not imperative upon the court to grant an order for security for costs, under all circumstances.”

In the case before me the defendants were informed, at the commencement of the suit, by the allegation in the complaint, that the.plaintiffs were non-residents of this State, and, in my view, they ought at that time, or within a reasonable time thereafter, to have applied for the order requiring them to file security for costs. The English courts have held, that .the defendant must make his application promptly, after he knows of the facts entitling him to the order, and even before he has taken any subsequent steps in the cause. (3 Chit. Gen. Pr., 633 ; 5 B. & Ald., 702 ; 1 D. & R., 348 ; 1 Moore & Payne, 30.) And Beardsley, J., in Robinson a. Sinclair (supra), says— “ He (the defendant) cannot, without good cause shown, -be allowed to lie by for months,” before he makes his application.

I cannot find any justification for the defendant’s delay in making his application for security in this case. He has waited until the unfortunate state of public affairs in the country has placed it beyond the power of the plaintiff’s attorney to have any communication with his clients, or for them to furnish the requisite security. The liability of the plaintiff’s attorney to the extent of one hundred dollars, continues, and, in my judgment, is all the security the defendants can now obtain, under the circumstances -of this case.

The motion is denied, but without costs.

Since our report of the case of Power a. Alger was printed (Ante, 284), we have been furnished with the dissenting opinion of Mr. Justice Hogeboom. in that case, which is as follows: