Griswold v. Bell ( 1827 )

Prentiss, J.

Whether or not a recognizance to secure the costs was necessary on issuing the writ, is the question to which our attention has been devoted, and on that alone a decision of the case requires us to express an opinion. The act of 1797 (Comp. Stat. p. 70, s. 44,) provides, that when any person or persons, not being freeholders in this state, or, being freeholders, shall reside without the state, shall apply to any person having authority to issue writs, for any process whatever, to summon or attach any person or persons before any court w'ithin this state, there shall be sufficient security given to the defendant or defendants, by way of recognizance, &c.; and the 45th .section enacts, that no writ of attachment shall be issued against any person or persons within this state, until the person or persons praying out such writ, shall have given sufficient security to the adverse party, by way of recognizance, &c. The act also requires, that a minute of the recognizance, with the name of the surety or sureties, and the sum in which they are bound, shall be made upon the writ, at the time of signing thereof, and signed by such authority; and it is provided, that if any writ be otherwise issued, the same, on motion, shall be abated. By this act, a recognizance for costs is necessary in every process, either of summons or attachment, w'here the plaintiff is not an inhabitant and freeholder vrithin the state; and although, if he be a freeholder and inhabitant of the slate, no recognizance is required in case of a summons, yet it is necessary in every case where the process is by attachment. The words of the act, “any process whatever to summon or attach any person,” are very broad, and must comprehend every original writ, which the law requires to be signed by the clerk or a magis* trate to give it validity, and which contains a declaration, and^ is the institution of a suit between party and party. A mere™ citation or, subpoena, issued on a petition or application to the court, for the purpose of notice to appear, is not within the act. A trustee process, howevAis not of this character, but is both in form and nature an oripnal writ between party and party, and is plainly a process of summons, within the very letter and intent of the statute. Indeed, we are not'aware that it was ever doubted, that where the plaintiff was not an inhabitant and freehold84’ within the state, a recognizance for costs was necessary in this, as ivell as in any oilier original writ of sum» mons-. The doubt which existed, was not whether a recognizance for costs was at all necessary in such case, but whether the recognizance was for the benefit of the trustee or the principal debtor. This doubt led to the act of 1807, which provides, that where the plaintiff is not an inhabitant and freeholder within the state, the clerk or magistrate signing the writ, shall take one recognizance to the trustee, and one to the principal debtor. {Comp. Stat.p. 1554.) But it was never supposed, that this act was the first and only provision made by law for security for costs in a trustee process, but that, in effect, it was a mere alteration of an existing provision, requiring two separate recognizances, where only one was before required. If it were otherwise, then, prior to this act, a trustee process might issue without any security for costs, although the plaintiff was not an inhabitant and free-holder within the state, which certainly was never the understanding or practice.

:

If a trustee process was a writ of summons within the act of 1797, and a recognizance for costs was necessary by that act, where the plaintiff was not an inhabitant and freeholder within the state, it is decisive of this question; for by the act of 1822, made in addition to the act of 1797, it is provided, “that no writ of summons shall be issued, until the plaintiff or plaintiffs, shall have given security for costs of prosecution, in the same manner as is provided in the case of the issuing of writs .of attachment.” {Comp. Slat. p. 115.) As in every writ of attachment, the plaintiff, by the act of 1797, although an inhabi- ' tánhánd freeholder within the state, must give security for costs to the adverse party, so by force of the act of 1822, h'q-must give like security in every case of a writ of summons. It seems manifestly to have been the intention of the legislature, -to require security for costs from the plaintiff in every original writ; and certainly there is the same necessity for this security in a trustee process, as in any other original writ. Being a writ of summons, it is not only within the reason and intent, but within the very letter of the act of 1822; and to hold otherwise, would involve the inconsistency and absurdity, that while a plaintiff, although an inhabitant and freeholder within the state, cannot sue out an ordinary writ of summons, without a recognizance for costs, yet he may sue the same person by a writ of summons, in the form of a trustee process, without such ^recognizance. And if a recognizance was not necessary in the wfirst instance, none can be required of him in any stage of the proceedings, however necessary it may be for the security of the adverse party; for we cannot ojáer bail to be put in, in the progress of the suit, except the pontiff be a foreigner, only where a recognizance was required on issuing the writ, and it appears that the surety, or the sum of the recognizance taken, is insufficient to respond the costs. {Comp. Stat. p. 71, s. 45.) The act of 1822 puts writs of summons on the same footing with writs of attachment, and it is evidently the intention, that neither should in any case issue, without a recognizance to secure the costs ; and on a just construction of the several statutes, taken together, we think that a recognizance for costs was necessary in this case, both to the trustee and the principal debtor, and consequently, that the writ must abate.

Wm. A. Griswold, pro se. Heman Allen, for the defendant.

Judgment that the writ abate.