directed by the court, the sheriff is entitled to his costs from CHAP. XI. the time of directing the issue, and of the application for those costs (4). So where an execution-creditor appeared under the Interpleader Act, and consented with the claimant that the sheriff should sell the goods, and that their produce should abide the event of an issue to be tried, but subsequently abandoned his claim, the court compelled him to pay the sheriff the costs of selling the goods(); where there had been great delay, however, on the part of the sheriff, in applying to the court, in consequence of negotiations between the parties, and the execution-creditor afterwards abandoned his claim, the court ordered each party to pay his own costs (m). ceedings, Entering Proceedings, Execution, &c.] The practical direc- Entering Protions, (ante, 1003), as to the mode of entering the proceedings on Execution, record, and taxing costs, and suing out execution on a rule ob- &c. tained under the above enactment, on behalf of the sheriff, &c., will be here applicable. The court has no power, under the act, to order rules made under it to be entered up, otherwise than as appointed in the seventh section, viz. according to their true date(n). enter, &c. It may here be added, that, where the sheriff has been Compelling allowed to withdraw from possession under the Interpleader Sher to reAct, he cannot, after he is out of office, be compelled to reenter, whatever be the upshot of the question between the parties (o). Also even where the sheriff's rule is discharged, he is entitled to a reasonable time after the rule is disposed of for making his return, and therefore an attachment issued against him on the day on which the rule was discharged, has been held irregular (p). (k) Scales v. Sargeson, 4 Dowl. 231. () Dabbs v. Humphries, 1 Scott, 325; 1 Hodges, 4; 1 Bing. N. C. 412; 3 Dowl. 377, S. C.: and see Underden v. Burgess, 4 Dowl. 104: Armitage v. Foster, 1 H. & W.208. (m) Dizon v. Ensell, 2 Dowl. 621 see Tidd, New Pract. 581. and (1) Lambirth v. Barrington, 4 Dowl. (0) Wilton v. Chambers, 3 Dowl. 12. R VOL. II. CHAPTER XII. BOOK IV. In what Cases. tiff resides abroad. SECURITY FOR COSTS. In what Cases.] IF the plaintiff, whether suing in an individual or in a representative (a) capacity, and whether for his Where Plain own benefit or that of another (b), reside abroad (c), or even in Ireland (d), or Scotland (e), the court or a judge, upon application, will stay the proceedings until he give security for costs, and this although the defendant has no defence on the merits (f). So, where a plaintiff in error resides out of the jurisdiction of the court, he may be in like manner compelled to find security for costs; and, in default thereof, the defendant in error will be allowed to proceed on his judgment, notwithstanding the writ of error(g). Where there are several plaintiffs, however, if any one of them reside in this country, the court will not, in general, compel this security to be given(k). It has been held to be no answer to this application to say, that the plaintiff is in this country, and was so when the action was commenced, unless the affidavit go on to state expressly that he resides, and intends to continue to reside, in this country (i). Nor is it any answer to say that the plaintiff is in the possession of money or Exchequer bills in this country, and this notwithstanding the 1 & 2 Vict. c. 110 (*). But where the plaintiff is out of the kingdom, on a mere temporary absence, especially if a seaman, or a foreigner serving on board an English vessel (1), or on board a foreign vessel constantly sailing to and from this country (m), he will not be compelled to give this security for costs (n), unless, as it seems, where the absence commenced before commencing the (a) Chevalier v. Finnis, 1 B. & B. 277; 3 (b) Youde v. Youde, 3 Ad. & El. 311. (e) Barter v. Morgan, 6 Taunt. 379; (f) Edinburgh and Leith Railway Co. v. (g) Lewis v. Ovens, 5 B. & Ald. 265. ford Railway Co. v. Fraser, 4 Bing. 394). (i) Oliva v. Johnson, 5 B. & Ald. 908; I D. & R. 560, S. C.: Naylor v. Joseph, 10 Moore, 522: Anon., 2 Chit. Rep. 152: and see Gurney v. Key, 3 Dowl. 559: but see Durrall v. Mattheson, 8 Taunt. 711s Cragno v. Hassan, 6 Taunt. 26. (k) Edinburgh and Leith Railway Co. v. Dawson, 7 Dowl. 573. (1) Henshen v. Garves, 2 H. BL. 383. (m) Nelson v. Ogle, 2 Taunt. 2534 (n) Ford v. Boucher, 1 Hodges, 58 There the plaintiff was a mariner, and abroad on a voyage, his family being left in this country in lodgings. Tindal, C.J., said, that he could not accede to the general rule laid down in Wells v. Barton, 2 Dowl. 160. And see Kaslen v. Plaw, 1 Moo. & P. 30: Nelson v. Ogle, 2 Taunt. 253: Henshen v. Garves, 2 H. BL 383: Jacobs v. Stevenson, 1 B. & P. 96: Anon», 2 Chit. 152: Cole v. Beale, 7 Moore, 613: Taylor v. Fraser, 2 Dowl. 622: Boustead v. Scott, 2 Dowl. 622: Frodsham v. Myers, 4 Dowl. 280. action(); but the absence must be temporary (p). Nor will the court require this security to be given upon the ground of the plaintiff being about to leave the country (9). Nor will they require it from a plaintiff merely because he is a foreigner, unless he also reside abroad(r). Nor will they require it on the ground of his absence abroad, when such absence is not voluntary; as in the case of naval and military officers, and other persons engaged abroad in the public service. Therefore they would not require it where the plaintiff was a commissioner of the Ionian Islands, filling his office out of this country(s); nor where the plaintiff was an English officer serving in South America(t); nor where he held the offices of port-captain and harbour-master in the island of Barbadoes(u). And, in such cases, it need not appear on the face of the plaintiff's affidavit that he is an Englishman (u). CHAP. XII. fendant re In one case, the Court of Common Pleas stayed the pro- Where Deceedings in replevin, until the defendant (who resided out of sides abroad. the jurisdiction of the court) found security for costs (x). But, in other actions, the defendant will not be compelled to give such security; and where both plaintiff and defendant were residing abroad, the court compelled the plaintiff to give security, but would not compel the defendant (y). Peers, Ambas In general a peer(z), or a foreign ambassador, or his In Actions by servant, will not be compelled to give security for costs (a); sadors, Kings, although ambassadors and their suites, by a fiction of the jus &c. gentium, are considered as still resident in the state from which they have been sent, and are not amenable to process in the country in which they actually reside. In two recent cases, the Court of Queen's Bench compelled foreign potentates to give such security, in causes arising out of commercial transactions (b). Infants or The fact of the plaintiff's being an infant, will of itself In Actions by afford no ground for compelling him to give security for Lunatics. costs, and this though his prochein amy be insolvent (c). But in a case where an infant sued by guardian, who was sworn to be insolvent, the Court of Common Pleas required the latter to give such security, or that his appointment should be revoked (d). Lunacy of the plaintiff is no ground for requiring security for costs (e). In ejectment, if the lessor of the plaintiff be an infant, the In Ejectment. (0) Wells v. Barton, 2 Dowl. 160: Foss v. Wagner, Id. 499: but see Ford v. Boucher, I Hodg. 58. (p) See Foss v. Wagner, 2 Dowl. 499. An absence of eighteen months would not, perhaps, be temporary. (See Id.: and see Wells v. Barton, Id. 160: Taylor v. Fraser, Id. 622: Gurney v. Key, 3 Id. 559). (q) Willis v. Garbutt, 1 Y. & J. 511. (r) Durrell v. Mattheson, 8 Taunt. 711: Ciragno v. Hassan, 6 Id. 20: see, however, Oliva v. Johnson, ante, 1012, n. (k). (8) Lord Nugent v. Harcourt, 2 Dowl. 578. (t) O'Lawlor v. Macdonald, 3 Moore, 77; 8 Taunt. 736, S. C. (u) Ecering v. Chiffenden, 7 Dowl. 536. (1) Selby v. Crutchley, 1 B. & B. 505; 4 Moore, 280, S. C. In Hiskett v. Biddle, 1 Hodges, 119; 3 Dowl. 634, S. C., the Court of Common Pleas refused to com pel the defendant in replevin to give se (y) Baxter v. Morgan, 6 Taunt. 379. (z) Ferrars (Earl) v. Robins, 2 Dowl. 636: and see Lord Nugent v. Harcourt, 2 Dowl. 578 but see Lord Aldborough v. Burton, 9 Leg. Obs. 171, 26th July, 1834, before the Master of the Rolls. (a) Duke de Montellano v. Christin, 5 M. & Sel. 503. (b) The Emperor of Brazil v. Robinson, 5 Dowl. 522; 1 Nev. & P. 817. S. C.: Otho, King of Greece, v. Wright, 6 Dowl. 12. (c) Anon., 1 Marsh, 4: Yarworth v. (d) Mann v. Berthen, 4 Moo. & P. 215. BOOK IV. In Actions by Insolvent. court or a judge, upon application, will stay the proceedings until security be given for costs (g), or his guardian undertake for the payment of them (h), or some real and responsible person be named as plaintiff (i). So, if the lessor of the plaintiff reside abroad (k), or die pending the action (1), the court or a judge will stay the proceedings in like manner, until such security be given. But where a similar application was made, upon the ground of the lessor of the plaintiff having privilege of parliament, it was refused (m). The defendant may also, if necessary, either by motion or summons, compel the plaintiff's attorney to disclose the place of residence of the lessor of the plaintiff; or if the attorney refuse to do so, the proceedings will be stayed until security be given for costs (n). No application, however, for this purpose will be entertained after verdict (o). Also, if the nominal plaintiff in the ejectment be made plaintiff in the action for mesne profits, the court or a judge will stay the proceedings in this latter action until security be given for costs (p). The court or a judge will not require the plaintiff to give Bankrupt or security for costs, merely because he is insolvent, even in a qui tam action (q), or where he has assigned the debt (r), unless where he has actually taken the benefit of the Insolvent Act after action brought, and the assignee has not disclaimed the action (s), or where the action is clearly for the benefit of his assignees (t). And where, in an action ex delicto by a pauper plaintiff, it appeared that he had obtained his discharge under the 1 & 2 V. c. 110, after action brought, the court refused to compel security for costs (u). And, indeed, where the plaintiff is a pauper the court will not, it seems, entertain the motion unless he has previously been dispaupered (r). Also, on the same grounds, the court or a judge will not require an uncertificated bankrupt to give such security (z), unless such action be brought for the benefit of the assignees (y), or unless where the plaintiff becomes bankrupt after action brought, and the defendant is entitled to judgment as in case of a nonsuit, or the like (z). And in an action ex con (g) Anon., 1 Wils. 130: Throgmorton d. where no assignee had been appointed. Miller v. Smith, 2 Str. 932. (h) Anon., Cowp. 128. (i) Noke v. Wyndham, 2 Str. 69. See a form, Chit. Forms, 376. (k) Denn Lucas v. Fulford, 2 Burr. 1177. Aliter, if there be several lessors, and all are not abroad (ante, 1012). (1) Thrustout d. Turner v. Grey, 2 Str. 1056. (m) Preston v. Lingden, 1 Str. 479; 8 Mod. 20, S. C. (n) Short v. King, 1 Str. 681: Vol. I. 57. (0) Ante, 993: Vol. I. 52. (p) Pike v. Corbin, Say. 78. (q) Golding v. Barlow, Cowp. 24: Field v. Carron, 2 H. Bl 27: Gregory v. Elgin, 2 C. & M. 336; 4 Tyr. 235; 2 Dowl. 259, S. C.; in which case the plaintiff had brought nearly 100 actions against publicans for penalties under the 25 Geo. 2, c. 16. (r) Morgan v. Evans, 7 Moore, 344: Day v. Smith, 1 Dowl. 460. (8) Doyle v. Anderson, 2 Dowl. 596, (t) Heaford v. M'Night, 4 D. & R. 81; 2 B. & C. 579, S. C.: and see Clapworthy v. Collier, 2 C. & J. 631: Doyle v. Anderson, 2 Dowl. 596. (u) Andrews v. Marris, 7 Dowl. 712. () Mylett v. Hawkins, 5 Dowl. 647. (x) M'Connell v. Johnston, 1 East, 431: Cohen v. Bell, Tidd, 9th ed. 468: Minchin v. Hart, 1 Chit. Rep. 215: M'Cullock v. Robinson, 2 New Rep. 352: Anon., 2 Taunt. 61: Snow v. Townsend, 6 Id. 123: Clapworthy v. Collier, 2 C. & J. 631. () Webb v. Ward, 7 T. R. 296: Mason v. Polhill, 2 Dowl. 61: 1 C. & M. 620; 3 Tyr. 595, S. C. In Reynolds v. Holden, Q. B.; Bail Court, M. T. 1837. Cafe ridge, J., refused to compel the assignees to give security for costs where the defendant had not applied to them before the motion, to know whether or not they intended to continue the action or repudiate it. (1 Jurist, 945). (2) Taylor v. Montague, 2 M. & W. 315: see Doyle v. Anderson, 2 Dowl. 596: Beckham v. Knight, 6 Dowl. 227. tractu, where the plaintiff became bankrupt, and obtained his certificate, after action brought, and after issue joined, where the assignees had not interfered, nor intended to interfere, and where the defendant neglected to plead the bankruptcy, puis dar. cont., as he might have done, the court refused to compel the plaintiff to give security for costs (a). And it seems that it will not be required in an action brought by the bankrupt to try the validity of the commission, even though he be abroad (b). Where a defendant obtains security for costs on the ground of the plaintiff's bankruptcy, and that the action is for the benefit of his assignees, he must undertake not to plead the bankruptcy (c). CHAP. XII. If a plaintiff be convicted of felony, and under sentence of In Actions by transportation, the court will stay the proceedings until he Felons, &c. give security for costs (d). And where, after arresting the defendant, the plaintiff absconded to avoid a charge of bigamy, the court required him to give this security (e). instigated by Where another person is, in fact, proceeding with an action In Actions for in the name of the party on the record, and that party is Benefit of, or insolvent, the court will, by staying the proceedings, compel third Parties. him, for whose benefit the action is proceeding, to come in and give security for costs(f). And the same if the action be brought at the instigation of a third party to try a right in which such third party is interested (g). Instances of this have already been given in the case of bankrupt and insolvent plaintiffs (supra). In another instance, where trespass was brought against parish officers for a distress for poor's rates, the court stayed proceedings in the cause until security for costs was given by the landlord of the plaintiff, who was also his attorney, and who had instigated him to refuse payment of the rates(h). But in a late case a somewhat similar motion was refused; it not being clearly made out by the affidavits that the action was the action of the third party, and not that of the plaintiff on the record (i). And although where all a debtor's property has been assigned to trustees for the benefit of his creditors, the court might compel the trustees to find security for costs in any action brought by them in the debtor's name; yet if merely part of his property be assigned, they will not require such security (j). And the Court of Common Pleas refused to require security for costs from the plaintiff in a case where it was sworn that he was insolvent, and that the action was brought in his name for the benefit of J. S., who was alone beneficially interested in the result (k). It may be here added, that, except in ejectment or where he is an officer of the court, the only mode of compelling a stranger to the record to pay costs is by an application to the court to (a) Beckham v. Knight, 6 Dowl. 227; 4 Bing. N. C. 74, 8. C. (b) M'Cullock v. Robinson, 2 N. R. 352: see Kennett v. Duff, 2 Smith, 523: Roper v. Phillis, 3 M. & R. 84. (e) Manley v. Mayne, 3 M. & R. 381: and see Minchin v. Hart, 1 Chit. Rep. 215. (d) Harrey v. Jacob, 1 B. & Ald. 159. (e) Rogers v. Bangor, 4 Dowl. 411: but see Lloyd v. Davis, Ï Tyr. 533. (f) Per Coleridge, J., in Andrews v. Morris, 7 Dowl. 712. (g) See per Tindal, C. J., in Hearsey v. (h) Tenant v. Brown, 5 B. & C. 208. j) Day v. Smith, 1 Dowl. 460. |