Walley v. Leonard

2 How. Pr. 282

• Court: New York Supreme Court
• Decided: September 15, 1846
• Status: Published

Opinion

Aeter hearing counsel for both parties, on plaintiffs’ motion to set aside the declaration in this cause and all subsequent proceedings, security for plaintiffs’ costs, in manner and form required by law, not having been filed: Ordered, that the motion be granted, unless the costs of the plaintiffs in making said motion be paid within twenty days. And also, unless security for the payment of the costs of said cause be filed with the clerk of this court, in Albany, within the same time; the obligation for the payment of said costs must be made to the plaintiffs by name, as overseers of the poor of the town of (Bethlehem). Said obligation also to state the pendency of this suit, and by what persons or person it was and is prosecuted: also, that said suit was intended to be commenced and prosecuted in pursuance of the seventh section of the act entitled “ An act relating to excise, and to licensing retailers of intoxicating liquors,” passed May 14, 1845. It must also state and declare, that the persons executing said obligation thereby covenant, promise and agree, to and with the said overseers, that the said persons or person by whom said cause was commenced {who are to be named) shall pay all costs on the part of the defendant, as well as on the part of the plaintiffs, if said persons or person who commenced said cause {and who are to be named) shall Jail to recover judgment; and that they, the said persons so executing said obligation, shall and will indemnify and save harmless the said plaintiffs of and from all such costs as aforesaid; said obligation to be executed by at least two persons, under their hands and seals, and who must, severally, make affidavit that they are residents of said town of (Bethlehem), and householders, and that they are worth more than five hundred dollars over and *above all debts. Notice that said bail has been filed is also to be given within said twenty days; and if said security shall be so given and filed, and notice given and costs paid within said twenty days, then the motion is to be denied. As it does not appear, by the papers in the cause, by whom the cause was directed to be commenced, the plaintiffs, if the costs of this motion are not paid, or if necessary for any other purpose, may apply for redress against the persons or person by whom the said suit was commenced; or, if no person can be ascertained, then against the attorney who prosecuted the same ; the said plaintiffs may also apply to the court, if dissatisfied with the sufficiency of the security which may he filed.