Goodtitle v. See ( 1799 )

This was an action of ejectment, instituted in the County Court of Hardy, in September, 1796. In the succeeding November, on the motion of the defendant, the court ordered that the plaintiffs should give security for costs, within sixty days thereafter, in default whereof the suit should be dismissed : “it appearing to the court, that the said plaintiffs are not the inhabitants of 124 *this state—notice hereof being now given to the plaintiffs’ attorney.” (See Vol. I. Rev. Code, p. Ill, sect. 23, which authorizes this proceeding.) The suit was continued at March, August and November courts, 1797. At March court, 1798, on the motion of the defendant, the suit was dismissed, the plaintiff having failed- to give security for costs within sixty days agreeably to the order of court made November, 1796. The plaintiff at the same time offered sufficient security for costs, which the court then refused to receive, the sixty days having passed. The plaintiff excepted to the opinion of the court and appealed. The district court of Hardy, stating that the decisions of the district courts have been variant on this point, adjourned the cause to the general court for difficulty.

June 14th, 1799. The general court, consisting of Judges Tucker, Tyler, Henry, Jones and Nelson, gave the following decision. “The court is of opinion, that as the plaintiff in this cause was ready to give security for the costs before the cause was dismissed, the county court ought to have permitted him to do so, and not to have dismissed his suit, and that the said suit ought to be reinstated in the said district court; and it is further the opinion of this court, that in all such cases, where there is no general agent or attorney in fact for the plaintiff known to the defendant, notice to the attorney prosecuting the suit is sufficient.”