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a. An attorney was ordered to give up papers, on security being given for his alleged lien (Cunningham v. Widing, 5 Abb. 413).

b. Staying proceedings till costs of previous action paid.—As a general rule, a court of record will, where the defendant's costs in a former action by the same plaintiff, for the same cause, remain unpaid, stay proceedings in the second action until such costs are paid (Youle v. Brotherton, 10 Johns. 363; Edwards v. Ninth Ave. R. R. Co. 22 How. 444; Julio v. Ingalls, 15 Abb. 429); but a justice of the peace has no power to stay an action on such a ground (Youle v. Brotherton, 10 Johns. 363). A stay will not be ordered where the first action was in a court of a foreign state or country (Julio v. Ingalls, 15 Abb. 429); and where the plaintiff brought an action in the superior court for legal relief, his complaint was dismissed with costs, but without prejudice to an action for equitable relief, without paying the costs of that suit, he brought the action for equitable relief, held that the court would not, as a matter of course, stay the proceedings in the second action, until the costs of the first were paid (Davis v. Duffie, 5 Duer, 688; 3 Abb. 263; see Cobbett v. Warner, 2 Law Rep. 107, Q. B.)

c. The motion should be made before judgment in the second action; it cannot be made after judgment (Salters v. Ralph, 15 Abb. 273; and see 2 Cow. 503; 3 id. 57; id. 380; 1 Johns. Cas. 247); but semble, the motion may be embraced in a motion to set aside the judgment in the second action for irregularity (id.) The motion is addressed to the discretion of the court (McMahon v. Mut. Ben. Ins. Co. 12 Abb. 28). And the order is not ordinarily appealable, but an appeal will be allowed in certain cases (id.)

d. Where such a stay is ordered, and the costs of the first action are not paid within a reasonable time, the court may make a further order that the complaint be dismissed, unless the costs are paid within a certain time (Jackson v. Edwards, 1 Cow. 596).

e. Further as to staying proceedings until the costs of a previous action are paid, see 2 Bos. & Pul. 337; 3 id. 23, note a ; 3 Dowl. & R. 53; 6 Taunt. 74; 2 T. R. 114; 3 Wils. 149; 19 Johns. 196, 237; 2 Cow. 22, 580; 1 id. 140; 9 Wend. 429; 6 Hill, 372; 4 Wend. 203, 216; 2 id. 623; 27 How. 155; 7 Rob. 194.

f. Double costs.-This section has not abolished the right to double costs given by the revised statutes (Bartle v. Gilman, 17 How. 1; 18 N. Y 260). Double costs are allowed only in cases of verdict, demurrer, nonsuit, non pros., or discontinuance; and a report of referees is not within the statute (19 Wend. 225; Calkins v. Williams, 1 Code Rep. N. S. 53; Calkins v. Brand, ib.; contra, Tillon v. Sparks, 9 How. 465). What defendants entitled to double costs (Van Bergen v. Ackles, 21 How. 314). A public officer proceeded against by mandamus is entitled to double costs, if he succeeds (The People v. Colborne, 20 How. 378). The provisions of the revised statutes as to double costs do not apply to actions of an equitable character (Taaks v. Schmidt, 25 How. 340; see Wheelock v. Hotchkiss, 18 How. 468; Stewart v. Metro. B'd of Health, 33 How. 4; 50 Barb. 192; 34 How. 31; 3 Abb. N. S. 383; Cooper v. Metro. B'd of Health, 33 How. 5; Carpenter v. Willett, 3 Rob. 700; 28 How. 376; Jackson v. Lynch, 32 How. 93; Davis v. Cooper, 50 Barb. 376).

g. A public officer, otherwise entitled to double costs, waives his right to such costs by uniting in a defense with a party not entitled to such costs (Bradley v. Fay, 18 How. 481).

h. Treble costs-(see Walker v. Burnham, 7 How. 55).

i. Double costs on appeal-(see Dexter v. Adams, 4 How. 367; 2 Denio, 646).

j. Married woman.—If a married woman who is plaintiff in an action for a divorce discontinues it, or is defeated, her husband is not liable to her attorneys for the costs of the action (Phillips v. Simmons, 11 Abb. 287). As to collecting costs against a married woman, prior to the recent statutory enactments on the subject (see Thomas v. Thomas, 18 Barb. 149; Valentine v. Middleton, 11 Ir. Eq. R. 280).

a. Insolvent and dissolved insurance companies.-Costs under law of 1862, p. 743, to facilitate the closing up of insolvent and dissolved mutual insurance companies (Bangs v. Barto, 24 How. 487).

b. No jurisdiction.-On dismissing an action, for want of jurisdiction, the court may render a judgment for costs (McMahon v. Mut. Ben. Ins. Co. 3 Bosw. 644; 8 Abb. 297; 12 id. 28; King v. Poole, 36 Barb. 242; Cumberland Coal Co. v. Hoffman Steam Coal Co. 39 Barb. 16; 30 id. 159; 20 How. 62; 15 Abb. 78; contra, Harriott v. N. J. R. R. 8 Abb. 284; Strader v. Graham, 18 How. U. S. Rep. 602; and see Gormly v. McIntosh, 22 Barb. 271).

c. Forcible entry.-Costs in proceedings for forcible entry, &c., may be regulated by the supreme court (The People v. Townsend, 6 How. 178).

d. Security for costs.-The provisions of the revised statutes (2 R. S. 620) are still in force (2 Sand. 632; 16 Abb. 259) and are as follows:

§ 1. When a suit shall be commenced in any court

1. For a plaintiff not residing within the jurisdiction of such court; or for several plaintiffs who are all nonresidents; or

2. For, or in the name of, the trustees of any debtor; or

3. For, or in the name of, any person being insolvent, who shall have been discharged from his debts, or whose person shall have been exonerated from imprisonment, pursuant to any law, for the collection of any debt contracted before the assignment of his estate; or

or,

4. For, or in the name of, any person committed in execution for a crime;

5. In the name of any infant whose next friend has not given security for

costs

The defendant may require such plaintiff to file security for the payment of the costs that may be incurred by the defendant, in such suit or proceeding.

§ 2. If, after the commencement of a suit, the plaintiff shall become a nonresident, or all the plaintiffs shall become nonresident or insolvent, and be discharged or exonerated as aforesaid, or be sentenced to state prison for any term less than for life, the defendant may also require such security to be filed.

§ 3. The order to file such security, and that all proceedings on the part of the plaintiff be stayed until such security be filed, and the sureties shall justify if excepted to, may be made by the court in which the action is pending, or by any judge thereof in vacation, upon due proof, by affidavit, of the facts entitling such defendant thereto. [The power here given to a judge_out_of court is not restricted by § 401, subd. 6. of the code (Washburne v. Langley, 16 Abb. 259; Sisson v. Lawrence, 16 Abb. 259, note).]

§ 4. Such security shall be given in the form of a bond, in a penalty of at least two hundred and fifty dollars, with one or more sufficient sureties, to the defendant, conditional to pay, on demand, all costs that may be awarded to the defendant in such suit.

§ 5. It shall be filed with a clerk of the court, and notice thereof be given to the defendant or his attorney. Within twenty days after the service of such notice, the defendant may except to the sufficiency of the sureties, by giving notice of such exception to the plaintiff's attorney.

6. Within twenty days after such notice of exception, the sureties shall justify, by an affidavit, that they are worth double the penalty of such bond, over and above all debts; of which affidavit a copy shall be served on the defendant or his attorney. Such justification shall operate to discharge the order to stay proceedings.

§ 7. In the cases in which, according to the provisions of this title, a defendant at the commencement of a suit shall be entitled to require security for costs, the attorney for the plaintiff shall be liable for such costs, to an amount not exceeding one hundred dollars, until security therefor be filed, as herein provided, whether such security shall have been required by the defendant or

not.

§ 8. Such attorney may relieve himself from such liability, by filing security, and the sureties therein justifying, if excepted to, as herein provided, without

being required to do so by the defendant, and by giving notice thereof to such defendant, or his attorney.

a. These provisions of the revised statutes apply only to courts of record, and are not applicable to justices' courts (Payne v. Hathaway, 4 N. Y. Leg. Obs. 21).

b. Practice on applying for security.-The practice as to ordering and filing security for costs is unchanged by the code (Caldwell v. Manning, 24 How. 38; Colt v. Wheeler, 12 Abb. 389). The practice to be pursued, when it is desired to obtain security for costs is either (1) to obtain a chamber order ex parte, directing security to be filed within twenty days, or that cause be shown on a day after the expiration of [or during, 12 Abb. 389] said twenty days, why such security should not be filed, and staying proceedings in the mean time, or (2) to move for security on notice to the opposite party (Caldwell v. Manning, 15 Abb. 271; 24 How. 38; Browning v. Freeman, 8 How. 493; and Colt v. Wheeler, 12 Abb. 388, stating the practice in the New York common pleas as differing in some respects from the practice in the supreme court).

c. The defendants cannot appear separately and each require security. The statute requires only one bond, and that should run to and is for the benefit of all the defendants (Leftwick v. Clinton, 26 How. 26).

d. Where a defendant, after serving a notice of motion for security for costs, and before the day on which he proposes to move, receives notice that security has been filed, with a copy of the sureties' affidavit of justification, he should countermand his notice; if he persists in moving, he will be charged with costs (Micklethwaite v. Rhodes, 4 Sand. Ch. R. 434).

e. When security will be ordered.—It is not imperative on the court to grant an order for security for costs under all circumstances (Robinson v. Sinclair, 1 Denio, 628; Florence v. Bulkley, 1 Duer, 706; Fearn v. Gelpcke, 13 Abb. 473). The plaintiff cannot be required to file security for costs when permitted to prosecute in forma pauperis, nor be permitted so to prosecute, if required to file security for costs (Florence v. Bulkley, 1 Duer, 706).

f. Where there are several plaintiffs, the defendant has a right to security for costs only where all of them are nonresidents. If only one of the plaintiffs is a resident, the defendant is not entitled to such security, although it appears such resident plaintiff is irresponsible (Ten Broeck v. Reynolds, 13 How. 462).

g. A plaintiff, who resides out of the city of New York, suing in the superior court of that city, may be required to give security for costs (Ashbahs v. Coussin, 2 Sand. 632; Blossom v. Adams, 2 Code Rep. 59; Hicks v. Payson, 7 Abb. 326; Bolton v. Taylor, 8 Rob. 647; 18 Abb. 385; and see Phanix v. Townshend, 1 Sand. 644, in note). A resident of the state, who is plaintiff in an action in the court of common pleas for the city and county of New York, cannot be required to give security on the ground that he is not a resident of the city and county of New York (Robb v. Macdonald, 12 Abb. 213).

h. A plaintiff who was a nonresident at the time of commencing his action, is not excused from filing security for costs by the fact that he afterwards becomes a resident (Ambler v. Ambler, 8 Abb. 340).

i. As to requiring security where the plaintiff enlists during the action and goes out of the state (Garwood v. Bradburn, 9 Dowl. Pra. Cas. 103).

j. A nonresident plaintiff, necessarily prosecuting in the right of her intestate, must give security for costs (Murphy v. Darlington, 1 Code Rep. 85; see, however, Goodrich v. Pendleton, 3 Johns. Ch. 521; and see Chevalier v. Finnis, 1 B. & B. 277).

k. As to requiring security of assignee in bankruptcy, see Denston v. Ashton, Law Rep. IV. 590 Q. B.; of executors, see Sykes v. Sykes, Law Rep. IV. 645 C. P.)

7. A temporary absence of the plaintiff will not entitle the defendant to security for costs (2 Wend. 258; 4 ib. 602; 8 ib. 134). But an absence of a year is not temporary (2 Wend. 258; and see 4 Sand. 198).

m. A nonresident plaintiff, in an action for chattels, took proceedings for

claim and delivery, and gave the usual undertaking; the defendants obtained a return of the goods,-held that the plaintiff might be required to give security (Gelch v. Barnaby, 7 Abb. 19; 1 Bosw. 657; Bouchier v. Pia, 14 Abb. 1; contra, see Wisconsin Ins. Co. Bank v. Hobbs, 22 How. 494).

a. A suit must be commenced in the name of an infant-sole plaintiff-to entitle the defendant to security for costs (Hulbert v. Newell, 4 How. 93). And where a husband and infant wife brought a suit jointly, the defendant was held not entitled to security for costs (b.) But in a subsequent case it was held that a nonresident guardian, of an infant plaintiff, suing with other plaintiffs of full age, whether such guardian be a responsible person or not, may be required to give security for costs (Ten Broeck v. Reynolds, 13 How. 462; see Grantman v. Theall, 31 How. 464). "It is a regulation of practice, entirely the creature of the court and under its control, whether a next friend shall give security or not. When appointed for an infant defendant, it is never required unless when the statute makes it necessary; when for an infant plaintiff, it would be required or not according to the circumstances of the case" (Thomas v. Thomas, 18 Barb. 150; see Lees v. Smith, 5 Hurls. & Nor. 632). A substituted next friend must give security for costs (Colden v. Haskins, 3 Edw. Ch. R. 311).

b. A foreign government, suing in a court of this State, may be required to give security for costs (Republic of Mexico v. Arrangois, 3 Abb. 470).

c. Foreign corporation.—A foreign corporation, before commencing an action, should file security for costs (2 R. S. 457, § 1; still in force, 10 How. 1). Omitting to do so is an irregularity only, which can at any time be cured by filing security (Bank of Michigan v. Jessup, 19 Wend. 10; Persse & Brooks Paper Works v. Willett, 14 Abb. 119). Whether a receiver of an insolvent corporation who is plaintiff shall give security for costs, is within the discretion of the court (Briggs v. Vandenburgh, 22 N. Y. 467).

d. An order denying a motion to dismiss the complaint on the ground that plaintiffs, a foreign corporation, had omitted to file security for costs, is not appealable (Tyrone R. R. Co. v. Schenck, 18 How. 275).

e. Where the appellants, a foreign corporation, gave notice of appeal under section 326, without giving security or obtaining any order on the subject, the respondents moved for an order that the appellants (the plaintiffs) file security for the costs. The motion was denied (Steam Navigation Co. v. Weed, 8 How. 49).

f. A judgment by default, in favor of a foreign corporation, will not be set aside for a failure to file security for costs before commencing, or during the pendency of the action (Merchants' Bank v. Mills, 3 E. D. Smith, 210).

g. Where, in a suit by a foreign corporation, the plaintiffs have once put in the security for costs required by statute, they cannot be ordered to file new security, although the sureties on the original undertaking become insolvent (Hartford Quarry Co. v. Pendleton, 4 Abb. 460; Slater Bank v. Sturdy, 13 Abb. 224; 21 How. 436; Boucher v. Pia, 14 Abb. 1; see, however, Bridges v. Canfield, 2 Edw. Ch. R. 208).

h. Security, when to be demanded.-It has been supposed that the defendant may demand security at any time before judgment (1 Edw. Ch. R. 450); and such appears to be the view taken in the supreme court (Boyce v. Bates, 8 How. 495, Abbott v. Smith, ib. 463; Butler v. Wood, 10 ib. 314); but in the superior court a different rule prevails. Thus, when the motion was not made until after the cause had been several times noticed for trial by the defendant himself, it was held the defendant had waived his right to demand security for costs (Swan v. Matthews, 3 Duer, 613; see Florence v. Bulkley, 1 Duer, 705). Whenever such a motion has been unreasonably delayed, the granting it rests in the sound discretion of the judge (see Fearn v. Gelpcke, 13 Abb. 437; Boucher v. Pia, 14 Abb. 1; Gardner v. Kelly, 2 Sand. 633); and a nonresident plaintiff, assignee for the benefit of creditors, was ordered to give security for costs, after judgment against him and after he had appealed from such judgment (Ranney v. Stringer, 4 Bosw. 663).

a. After a decision overruling a demurrer to the complaint, with leave to the defendant to answer on payment of costs, the defendant is not in a condition, at least until by payment of costs he has put himself in a position to be permitted to answer, to require the plaintiff to file security for costs (Butler v. Wood, 10 How. 314).

b. The motion should be made so as not to improperly delay the plaintiff in the prosecution of his action, or the motion will be denied with costs (6 Hill, 234).

c. Form of the order.—When the application is to a judge at chambers, the order should be in the alternative, requiring security to be filed in twenty days, or that the plaintiff show cause why such security should not be filed, at the next special term thereafter, with a stay of proceedings in the mean time; if made otherwise it might be irregular (Bronson v. Freeman, 8 How. 293; Caldwell v. Manning, 12 Abb. 271; 24 How. 38; Colt v. Wheeler, 12 Abb. 388).

d. Effect of the order.-An order requiring plaintiff to file security for costs, and staying his proceedings until the security shall be filed, and the sureties justify, does not operate as an extension of the time to answer (White v. Smith, 16 Abb. 109, note). After an order to file security, or show cause, with a stay of proceedings in the mean time, the defendant cannot move to dismiss the complaint for want of prosecution of the action, because plaintiff did not, pending the stay, notice the cause for trial (Mills v. Chapman, 1 How. 102). When a nonresident plaintiff gives notice of an application to the court (as for the appointment of a receiver), and before the time for making the motion the defendant obtains an order staying plaintiff's proceedings until security for costs is filed, the motion cannot be made until such security is given (Price v. Betts, 6 Paige, 44).

e. The bond-sureties.-The bond for security for costs need not follow the precise words of the statute, but it will be sufficient if equally favorable to the defendant (Smith v. Norcal, 2 Code Rep. 14). It may be executed by the sureties alone, without the plaintiff (1 How. 191). One surety is sufficient, and the plaintiff's attorney may be the surety (4 Sand. Ch. R. 434). The bond should be conditioned to pay on demand made upon the obligors, and not upon the plaintiff (Montague v. Bassett, 18 Abb. 13).

f. The penalty of the bond is to be at least $250, and may be required in such larger sum as the court or judge may deem proper (Leftwick v. Clinton, 26 How. 26). But as a general rule, the defendant will not be allowed to have the security increased over $250 (1 How. 146; Leftwick v. Clinton, 26 How. 26). And when a bond is given in the lowest sum the statute prescribes, and the defendant does not object to it within twenty days, the court will not entertain a motion to increase the amount of security (Častellanos v. Jones, 4 Sand. 679). The bond must be proved or acknowledged in like manner as a deed of real estate (Rule 6; Colt v. Wheeler, 12 Abb. 388). If the sureties are excepted to, they must justify, although they may have made an affidavit of sufficiency, a copy of which has been served with the bond (id.; Re Faulkner, 4 Hill, 30; Bronson v. Freeman, 8 How. 493). If the bond is executed by two sureties, and the sureties are excepted to, it is sufficient for one to justify (Riggins v. Williams, 2 Duer, 678). This applies to all cases of an order requiring security to be filed, if the order does not specifically require more than one surety (ib.)

9. Query, whether where one of several defendants appeared and procured a bond to be filed, any other defendant can except to the sureties, or move to enlarge the penalty of the bond (Leftwick v. Clinton, 26 How. 26).

h. Effect of omitting to file security.-If the plaintiff neglect for an unreasonable time to file security, after an order for him to do so, the defendant may move for judgment for a dismissal of the complaint (12 Wend. 295; 19 id. 10; 4 id. 209; Boyce v. Bates, 8 How. 496).

i. Waiver of order.-The defendant waives an order for staying the proceedings until security for costs are given, by putting the cause on the

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