Long v. Majestre

1 Johns. Ch. 202, 1814 N.Y. LEXIS 173, 1814 N.Y. Misc. LEXIS 54

• Court: New York Court of Chancery
• Decided: September 9, 1814
• Status: Published

Opinion

The Chancllor.

The 54th rule of this court, of June, 1806, requires security for costs, when a non-resident files a bill. The extent of that security, by the plaintiff, is not mentioned in the rule, and, of course, must be left to the discretion of the court. But if no such security be filed, and a solicitor prosecutes the suit, he is made responsible to the amount of 100 dollars, and no more. This does not, how,jver, prevent the court, in cases requiring it, from ordering security in a greater sum than what the solicitor stands charged with. The old rule in the English court of chancery. where the plaintiff lived abroad, was 40Z.; but Lord. Hardwicke said it was too low, and the court frequently increased it upon terms; it did so in the case of Gage v. Lady Stafford, (2 Ves. 556.,) from 40l. to 300l. The defendant is not bound to accept of the solicitor’s security under the rule. He is entitled to a sufficient freeholder. The solicitor is charged, in consequence of his omission, to see that his client files the sufficient security, and to provide, in all cases of non-residence, some indemnity for costs.

If, therefore, the defendant applies in season, he is entitled to adequate security for costs. The rale is, that he must apply before answer, and at the first opportunity, when the fact of non-residence appears upon the face of the bill; and if it does not, he must then apply as soon as the fact comes to his knowledge, which may be in any subsequent stage of the suit. (Meliorucchy v. Meliorucchy, 2 Ves. 24.)

I consider the application, in this case, in season, as to the defendant Majeslre, but not as to the other; and, consequently, the suit, as to her, must be stayed, until a bond to her, with one sufficient person, to he approved ofby the register or assistant register, in 750 dollars, be executed and filed.

Rule accordingly.