Foster v. Swasey

9 F. Cas. 579, 10 Law Rep. 32

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1846
• Docket: Case No. 4,984
• Status: Published

Opinions

WOODBURY, Circuit Justice.

The motion is refused, because it is so late. The place-of the plaintiff’s residence appears in the bill, and was known several terms ago. 1 Daniels, Eq. Prac. 36, 41; 3 Johns. Ch. 520. The motion, therefore, should have been made-before so much cost was incurred, and the case ready for a hearing. A motion of this kind, too, is granted only when the party is a resident abroad. Newl. Ch. Pr. 410. Cases exist where being resident in Ireland or Scotland has been regarded as abroad for this purpose. But those countries are under distinct judicial tribunals, and in some respects under different laws; while in this case the plaintiff resides, not out of the United States, nor even out of this circuit, but in the state of Maine. I think it would, at this late day in the case, and under the circumstances of his living within this circuit, be unjustifiable to require him to furnish security as coming either within our practice or that of England. The 44th rule provides, if the plaintiff lives without the state, the defendant may require security for cost, if moving it at the first term. But the motion is not made in season to come within this rule, and being founded only on the general practice in chancery, must by that be refused.