Burgess v. Gregory

1 Edw. Ch. 449, 1832 N.Y. LEXIS 210, 1832 N.Y. Misc. LEXIS 47

• Court: New York Court of Chancery
• Decided: November 12, 1832
• Status: Published

Opinion

Tee Vice-Chancellor.

I have examined the point now before the court with some care. It is desirable the practice should be settled.

According to early English cases, and as far back, in our own courts, as in the year one thousand eight hundred and fourteen, the defendant was required to make the application for security for costs (in a case where the complainant was a non-resident,) on the first opportunity7 after the defendant knew of the fact: Long v. Tardy, 1 J. C. R. 202, and also see Goodrich v. Pendleton, 3 Ib. 520, Any step after-wards was said to be a waiver of the right to such security. The only reason, if such it may be called, given for it is, that this is the established “practice;” no explanation is offered, and no cause or necessity for such a rule is shown.

The Revised Statutes, relating to security for costs from a non-resident complainant, contain no such restriction. The section is general in its terms—running thus: “ The defend- . “ ant may require such plaintiff to file security for the pay- “ ment of the costs that may be incurred by the defendant:” 2 R. S. 620, sect. 1 ; and then the statute goes on to fix the amount and hoy^ the secuiity is to be given—while nothing is said as to when the recognizance must be required. I am in favour of allowing the application to be made at any stage of the suit.

I shall, therefore, hold in this case that the application is regular. Let the complainant give a bond in two hundred and fifty dollars, with sureties, pursuant to the Revised Statutes. 1 wish it to be understood, that the rule I here lay down is to apply where the party is non-resident at the time .of commencing the suit and continue?; so.