Boucher v. Pia

14 Abb. Pr. 1

Opinion

By the Court.

Footnotes

•

*—Bosworth, C.

On the 8th of July, 1861, the defendant was first informed that the plaintiff was a nonresident. On the 11th of July, he obtained an order that security for costs be filed in ten days after the service of that order; or that cause be shown on the 19th of that month. On the 23d, after cause had been shown, the order appealed from was made. That order requires security for costs to be filed, and stays plaintiff’s proceedings in the mean time. The defendant was not guilty of laches in not making his motion sooner, and there is nothing to indicate that it was made merely for delay. In Rolinson a. Sinclair (1 Den., 628), the order was moved for merely for delay; the defendant moved in July, 1845, and there was no pretence that he did not. know in the previous December, when the suit was commenced, that the plaintiff was a non-resident. In Florence a. Bulkley (1 Duer, 705), the defend ant had been guilty of laches. In the case before us, laches cannot be imputed to the defendant.

H. Motion to compel the plaintiff, a non-resident, to file security for costs.

The plaintiff filed security for costs after the foregoing decision of the general term; and the sureties, upon exception, justified in the manner required by statute. The defendant now moved to compel the plaintiff to file further security, on the ground that the surety in the previous bond had become insolvent.

Edmund Yenni, for the motion. Orson A. House, opposed.

The defendant is entitled to security for costs in the form of a bond in the penalty of $250. What is the amount of the undertaking given on bringing the suit does not appear; it is not shown to have been $250. It does not appear, therefore, that the defendant has security in any form in the sum of $250, for both the costs of the action and the return of the property taken. The security given, not being a sealed instrument, will outlaw in six years after a cause of action accrues against the surety. (Code, § 91.) Upo,n a bond, the liability will continue twenty years. (Ih., § 90.)

In Rogers a. Hitchcock, a bond had been given, but for what amount is not stated. (9 Wend., 462.)

The defendant could not maintain an action on a bond given under 2 Rev. Stat., 523, § 7, subd. 2, unless he recovered judgment in the action. The terms of the bond required by 2 Rev. Stat., 620, § 4, are broad enough to secure the payment of any interlocutory costs that may accrue.

But whether such costs are recoverable or not, we think the order is free from error, and should be affirmed.

Monell, J.

The moving papers make out a clear case of insolvency, and there is no attempt on the part of the plaintiff to disprove it. If, therefore, I could find any power in the court to grant the relief the defendant asks, I should unhesitatingly give it. But the statute, which requires security for costs in certain cases, contains no provision which authorizes the court to compel the filing of a second bond, upon the sureties in the first becoming insolvent. In an analogous case, that of a foreign corporation suing in our court-, the N. Y. Common Pleas held, at general term, that there was no such power. (Hartford Quarry Co. a. Pendleton, 4 Abbotts' Pr., 460.) Provision is made by law (Code, § 335) for new security on appeal, where the sureties have become insolvent. Without this provision, or before it became a part of the Code, the court had no power to compel further or other security. (Bettshoven a. Wheaton, cited by Hoffman, J., in Willett a. Stringer, 15 How. Pr.., 310.) It is to be regretted there should be an absence of power to authorize the court to compel further security in these cases; but the fault lies with the Legislature, and not with the courts. The latter must administer, not make the law.

Motion denied, but without costs.

Present, Bosworth, Ch. J., Woodruff, Robertson, and White, JJ.