Hay v. Power

2 Edw. Ch. 494, 1835 N.Y. LEXIS 293, 1835 N.Y. Misc. LEXIS 1

Opinion

The Vice-Chancellor:

I consider the setting down of the cause by the defendants a waiver, in effect, of the order for security. If the defendants had wished to have the benefit of that order, he should have moved to dismiss for non-compliance with it without setting down the case for hearing upon the merits. The former course would have been proper: Camac v. Grant, 1 Sim. 348. There was no condition or proviso in his notice of hearing to save to himself the benefit of the order. The calendar, upon which the cause stands, has been called and thus the defendant has had an opportunity of bringing on the cause according to his notice and cannot complain of delay on this score. The cases most analagous on the subject of waiver are Morgan v. Morgan, 1 Atk. 53; Hall v. Chapman, Dick. 348; Dixon v. Olmins, 1 Cox, 412, and Hoskins v. Lloyd, 1 S. & S. 393.

The motion must be denied, but the costs may abide the event of the suit.