Buckley v. Johns

1 How. N.P. 64

Opinion

By the Court,

Bbown J.:

This is a motion for security for costs, based upon an affidavit that the plaintiff is irresponsible, that his claim is unjust and frivolous, and that affiant has a good defense upon the merits. The statute (2 C. L., Sec. 1,145) empowers the court to require the plaintiff to file security where the suit has been commenced in the name of any person being insolvent, who shall have been discharged from his debts pursuant to the law for the collection of any debt contracted before the assignment of his estate; and a further statute authorizes the court to require security “when it shall appear reasonable and proper;” but 1 have never understood it to be the practice either in this country or in England to compela resident plaintiff to file security simply because he was poor. (Field vs. Carron, 2 H. Bl., 27; Gale vs. French, 16 N. H., 95 ; Leazar vs. Cota, 43 N. H., 81 ; Ball vs. Brace, 27 Ill. 332.)

(Sept. 18, 1868.) ---for Plaintiff. --for Defendant.

If it could be made to appear that the plaintiff fraudulently kept his property beyond the reach of an execution, or that he was “pursuing his claim under circumstances wearing an aspect df oppression or vexation, or where facts exist which raise a legal presumption that his claim is unfounded, ’ ’ courts have ordinarily imposed some restraints upon its prosecution, but I think the facts creating these suspicions must be set forth, and that the mere belief of the defendant is insufficient. (Feneley vs. Mahoney, 21 Pick., 212.)

The motion must be denied.