sition to a motion for security for costs, Campbell, J., decided that security for costs must be given. Phonix v. Townshend, 1 Sand., 634, in note; 2 Code Rep., 2.

a. A non-resident plaintiff, necessarily prosecuting in the right of her intestate, must give security for costs. Murphy v. Darlington, 1 Code Rep., 85.

b. 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 Pr. R., 495; Abbott v. Smith, ib., 463; Butler v. Wood, 10 ib., 314); but in the superior court a different rule prevails; thus, in Swany. Matthews (not reported), application was made after issue joined, that the plaintiffs file security for costs. The motion was resisted on the ground that it should have been made earlier. Judge Duer said he had consulted his colleagues, and they concurred with him in the opinion that the motion came too late and must be denied. And in Florence v. Bulkley (1 Duer, 705), decided by Bosworth, J., and approved on consultation with the other judges, the motion was not made until after the cause had been referred and noticed for hearing; and it did not appear that there was any reason for making the motion other than such as existed and was known to the defendant at the time of the commencement of the action, it was held that the motion had been unreasonably delayed; and it was denied.

c. In a previous case in the superior court, where there had been a default and judgment, and the latter stood as security, the plaintiff after being let in to defend, moved for security for costs, and the motion was granted. Gardner v. Kelly, 1 Code Rep., 120; 2 Sand., 633.

d. In the supreme court a defendant may demand security for costs after his time to answer has expired. Abbott v. Smith, 8 Pr. Rr., 463. And per Mitchell, J., "In this case, after the time to answer had expired, an order was taken out that the plaintiff, who is a non-resident, file security for costs. The plaintiff says that the defendant cannot now obtain costs, as he is in default, and therefore it is too late for him to apply for security for costs. The correct answer was given to this, that until judgment it is uncertain who will be entitled to costs; if the plaintiff recover judgment, but for less that $50, he must pay costs; and the statute allows the defendant to require the plaintiff to file security for the payment of costs that may be incurred by the defendant, when a suit is commenced for a plaintiff not residing within the jurisdiction of the court. The action is pending until judgment is entered, if not longer. The order for security and for stay of plaintiff's proceedings must stand." Ib.

e. 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 Pr. R., 314.

f." Ever since the year 1830, it has been the uniform practice, when application was made by a defendant to a judge in vacation for an order that the plaintiff file security, to make such order in the alternative, requiring security to be filed in twenty days, or that the plaintiff show cause why such security should not be required, at the next special term thereafter. This with a stay of proceedings in the mean time, obtained in the manner prescribed by the code, is undoubtedly the proper practice yet. But the statute does not require the order to be in this form;" yet, if made otherwise it might be irregular, as against the settled practice of the court. So held by Harris, J., in Bronson v. Freeman (8 Pr. R., 493). In that case the summons was served January 10. On January 27, the defendant obtained [er parte] and served an order of a county judge, requiring the plaintiff to file security for costs within twenty days. On January 31, the defendant obtained from the same judge, and served, an order that the defendant have time to answer until ten days after the plaintiff has filed security for costs, and the sureties, if excepted to, have justified, and the notice of such justification given. On April 13, the plaintiff filed a bond as security for costs, with an affidavit of justification, and served a copy of the bond and affidavit on the defendant's attorney. On April 22, the defendant served notice of excepting to the sureties. No notice of justification was subsequently served, and on May 17 the plaintiff entered judgment as for want of an answer. The defendant moved to set aside the judgment for irregularity. The

court held that both parties had been irregular, and ordered the judgment set aside. The defendant was irregular in not taking the order to file security in the alternative. But the order, although irregular, could not be disregarded; and the plaintiff, not having moved to set it aside, ought to have complied with it; and this he did not do. "He should have obtained a new affidavit from the surety after receiving notice of the exception, and have served a copy of that affidavit on the defendant's attorney. Until that was done, the ten days allowed by the order of January 31st did not commence to run."

a. 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. Norval, 2 Code Rep., 14.

b. The bond should be executed by the sureties alone, without the plaintiff. 1 Pr. R., 100.

c. One surety for costs is sufficient, and the plaintiff's attorney may be the surety. 4 Sand. Ch. R., 434.

d. Where a plaintiff is ordered to file security for costs, and files an undertaking executed by two sureties, if the sureties are excepted to, it is sufficient for one to justify. Riggins v. Williams, 2 Duer, 678.

e. 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.

f. If the surety becomes insolvent another must be substituted. 2 Edw. Ch. R., 208.

g. As a general rule, the defendant will not be allowed to have the security increased over $250. 1 Pr. R., 146.

h. When a bond is given for security for costs in the lowest sum the statute prescribes, and the defendant does not object to it within 20 days, the court will not entertain a motion to increase the amount of security. Castellanos v. Jones, 4 Sand. 679.

i. If the plaintiff neglect 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 ib., 10; Boyce v. Bates, 8 Pr. R., 496.

j. The defendant waives an order for staying the proceedings until security for costs are given, by putting the cause on the calendar. 2 Edw. Ch. R., 494; Boyce v. Bates, 8 Pr. R., 496.

k. In Boyce v. Bates (8 Pr. R., 495), the plaintiff was a non-resident at the time of the commencement of the action, after issue joined and after the county of trial had been changed, an order was made on the defendant's motion requiring the plaintiff to file security for costs within 40 days, and staying his proceedings in the action until such security was filed. No security was filed, and after the expiration of the 40 days limited by the said order, the defendant noticed the cause for trial; and, the plaintiff not appearing when the cause was called, the defendant moved to dismiss the complaint. The motion was granted, and judgment entered for the defendant. The defendant demanded payment of the plaintiff's attorney of the amount of the judgment, $81 60, and $10 costs adjudged against the plaintiff on a motion in the action. The costs not being paid, the defendant moved for process against the plaintiff's attorney to compel payment. The court made an order that the plaintiff's attorney should pay the amount of the judgment and interest, the $10 awarded on the previous motion, and $10 for the costs of the motion then before the court, not exceeding in the whole $100. Per Parker, J., "The motion is resisted on the ground, that the defendant having taken steps to compel the plaintiff to file security for costs, ought not afterwards to abandon such proceeding and rely on his claim upon the attorney; and that the defendant, if entitled to payment from the attorney, cannot collect from him the cost of proceeding by noticing for trial to obtain a dismissal of the complaint, after having taken steps to compel the filing of security, and after having stayed the plaintiff's proceedings till such security should be filed. The requiring security for costs was no waiver of the claim upon the attorney. No security was filed in obedience to the order, and the liability of the attorney continues until security be filed. As to the stay of proceedings, the notice of trial was a waiver of it, and the plaintiff

was at liberty to appear and prosecute the suit (Hay v. Power, 2 Ed. Ch. R., 494). The plaintiff having refused to obey the order to file security, the defendant had a right to proceed in the cause as if none had been demanded, and to rely on the liability of the attorney for the costs. The attorney could have relieved himself from such additional expense by discontinuing the suit and paying costs up to that time." And after stating the terms of the order, as stated above, his Honor proceeded, "In case of a failure to comply with the order within twenty days after demand duly made, and service of a certified copy of the order, another application to the court will be necessary; but it may be made ex parte (1 Barb. Ch. R., 593). The defendant will then be entitled to an execution against the personal property of the attorney, process in the nature of a fi. fa. against personal property having been substituted by statute for a precept in nature of an attachment. (Laws of 1847 p. 491.) The demand of payment will not excuse the defendant from making a further demand. ** An attorney for a non-resident plaintiff cannot be proceeded against as for contempt, unless he refuses payment after an order of the court has been made and served requiring him to pay."

a. The attorney for a non-resident plaintiff is only liable for the costs in cases where the plaintiff is a non-resident at the time of the commencement of the action and not where he becomes a non-resident, pending the action. And therefore in order to compel payment of costs by the attorney it must be made to appear affirmatively that the plaintiff was a non-resident at the time the action was commenced (Moir v. Brown, 9 Pr. R. 270); and the plaintiff's attorney by continuing the action after the plaintiff becomes a non-resident does not render himself liable for the costs incurred subsequent to the time when the plaintiff became such non-resident. Long v. Hall, 1 Code Rep. N. S., 115.

b. If the plaintiff fail in his action, and the defendant's costs are not paid according to the condition of the bond, the defendant may commence an action on the bond as a matter of course, and without applying to the court for leave. 7 Wend., 482. But before commencing an action on the bond, a demand of the costs of the plaintiff or his sureties is necessary. 5 Hill, 37; 1 Pr. R., 100; ib., 191. See the concluding sentence of section 317, and note.

§ 304. [259.] (Amended 1849.) When allowed of course to the plaintiff.

Costs shall be allowed of course to the plaintiff upon a recovery, in the following cases :

1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial;

2. In an action to recover the possession of personal property;

3. In the actions of which, according to section 54, a court of a justice of the peace has no jurisdiction;

4. In an action for the recovery of money, where the plaintiff shall recover fifty dollars or more. But in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And in an action to recover the possession of personal property, if the plaintiff recover less.

than fifty dollars damages, he shall recover no more costs than damages, unless he recover also property the value of which, with the damages, amounts to fifty dollars. Such value must be determined by the jury, court, or referee, by whom the action is tried.

When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions, shall, at the time of the commencement of the previous action or actions, have been within this State, and not secreted.

NOTE TO SUBDIVISION 1.

When does a claim of title to real property arise ?

a. In Heaton v. Jervis (1 Johns. R., 146), it was held that the title came in question when the controversy was whether the defendant had a right of way or not over lands admitted to be the plaintiff's (2 Caines, 220), and that the certificate could be given after the trial; and title comes in question where the issue is whether the defendant has a right by prescription to overflow the plaintiff's lands. Eustau v. Tuthill, 2 Johns. R., 185.

b. In Sing v. Annin (10 Johns. R., 302), an action of trespass quare clausum fregit, the defendant pleaded that the plaintiff's fences were insufficient; it was held the title was not in question.

c. In Jackson v. Randall (11 Johns. R., 405), an action for mesne profits, after the trial of an ejectment suit, it was held that the title did not necessarily come in question. Title could only come in question in case the plaintiff claimed damages for occupation prior to the time of the demise alleged in the declaration in the ejectment suit. That "if the plaintiff's title cannot be disputed, it cannot be said title comes in question within the sense of the term used in the statute, which must mean that it was controverted or denied by the defendant;" and see Brown v. Scofield, 8 Barb. 239; and in Tugicliff v. Lawyer, 3 Cow. 382, it was held it was not sufficient that the plaintiff offered evidence pertinent to the question of title.

d. In Hubbel v. Rochester (8 Cow.'115) in trespass on wild and unoccupied lands, on the trial defendant admitted plaintiff's title; held nevertheless it was in question and must have been proved but for the admission on the trial. This decision rested on the ground that the lands were wild, and that plaintiff must prove title to establish a constructive possession. Brown v. Majors, 7 Wend., 495; Gardner v. Heart, 1 Coms. 528, and in Brown v. Majors, which was also in trespass on land, part of it uninclosed and part in occupation, it was held the title was not in question.

e. In Radley v. Brice (6 Wend. 539), trespass for taking timber, the defendant, sought to justify by proof of a right of common of estovers as tenant, held that the the title came in question.

f. In Chandler v. Duane (10 Wend. 563), there was set up a parol license to overflow the plaintiff's land,—held, the title did not coine in question.

g. In The People v. N. Y. Com. Pleas (18 Wend. 579), in trespass, a parol license to enter the plaintiff's land, to repair a drain, was set up; held the title did not come in question.

a. In Wickham v. Seely (18 Wend. 649), trespass for entering unenclosed land covered with water; defence license to enter; held title did not come in question.

h. "The term title, as used in the statute, does not embrace the fact of possession, nor any right founded on possession alone. It is limited to the right of pos session; a question of mere possession is not one of title." Ehle v. Quackenboss, 6 Hill, 537.

c. In Dunckel v. Farley (1 Pr. R., 180), trespass on wild lands, plea not guilty. held the title was in question.

d. In Burnet v. Kelly (10 Pr. R., 406), the complaint alleged a forcible entry into the house of the plaintiff, and severing from the freehold and carrying away and converting a cooking-range of the plaintiff. The defence was that at the time of the alleged trespass the premises were possessed by one Reed and not by the plaintiff, and alleged a license to enter from Reed, and that the said range was the property of the defendant. On the trial the plaintiff offered to prove his title to the premises; the defendant objected on the ground that only the possession and not the title was in question. The court admitted the evidence to show possession. The plaintiff had a verdict, damages 6 cents. A motion by the plaintiff for a certificate that the title came in question was denied; and per Mitchell, J., after referring to the cases above abstracted and some others: "The result of the cases seems to be (1) that under the old system of pleading, if the lands were wild the plaintiff could not prove his possession without proving his title, and that, therefore, the title to the land would be in controversy in the case of such lands whenever the possession was in controversy. (2) But if the lands were not wild, although they were unoccupied, proof of title would not be necessary in proving implied possession. (3) That under the old system of pleading a defendant in trespass put in issue the right to the possession, as well as the fact of possession; and because the right was thus put in issue, the title to the land was in question. (4) But under the present system nothing is in issue but what the answer puts in issue, it does not put in issue the right to the possession, but only the fact of posession, the title to the land is not in question. (5) If the answer does not raise the question, the proof cannot; unless from the circumstances of the case the fact of possession could not be proved without proving the right to the possession. (6) In this case the plaintiff in his complaint did not rely on his title to the land, but on his possession of it merely, and that he alleged not to be a possession as implied from ownership, but a possession in fact. (7) The proof of a title not necessary to the plaintiff's case, not alleged in the pleadings, and not controverted there, and not disputed at the trial, although allowed by the judge ex abundanti cautela, should not be allowed to give the plaintiff costs, as if the defendant had questioned his title."

e. In an action to recover damages for the breach of an agreement to convey lands, the only issue made by the pleadings was whether an inchoate right of dower in the wife of the defendant was a subsisting incumbrance? Held that the title did not come in question. Smith v. Riggs, 2 Ďuer, 622.

f. Where the claim of title to real property arises on the pleadings, and the plaintiff recovers a verdict, he is entitled to costs, of course. And in such a case, the defendant cannot relieve himself of his liability for the costs, by admitting the title on the trial. Niles v. Lindsley, 8 Pr. R., 133; 1 Duer, 610.

g. Where the complaint alleged that in the year 1847, and until the commencement of this action, the plaintiff was seized in fee of certain lands, and that afterwards the defendant committed a trespass thereon. The answer was a general denial, and leave and license of plaintiff's agent. And Per Duer, J. "I am of opinion that the question of title arises upon the pleadings, within the meaning of the statute. It is directly put in issue by the first portion of the complaint and answer; the allegation in a subsequent part of the answer, that defendant committed the trespass by leave of the plaintiff's agent, does not do away with the effect of that issue. As the plaintiff was compelled to come prepared to prove title, the admission by defendant of his title at the trial ought not to deprive him of his right to costs. The defendant having taken issue upon the claim of ownership in the complaint, he is estopped from denying that the plaintiff was bound to prove title upon the trial. If he meant by his answer to admit the title, he should not have made the issue. Ib.