PART I. BOOK IV. stay proceedings until security for costs be given; for the court will not, except in those cases, order a stranger to the record to pay the costs of an action, although he be substantially a party to it (7). Where Name used without Consent. Where a cestui que trust brings an action in the name of of third Party his trustee, or a wife in the name of her husband, or where one joint tenant or joint contractor uses the other's name in bringing a joint action, the court would probably, upon application of the trustee, or other joint tenant or joint contractor, stay the proceedings in the action, until the party bringing it should indemnify such trustee, &c., as to costs, in case of a nonsuit or verdict against him (m). In other Fresh Security. How and at what Time obtained, &c. Where the defendant has possessed himself of all the plaintiff's property, so as to divest him of all power to give security for costs, the court will not require it (n). If, after the security is given, one or both of the sureties become bankrupt or insolvent, that will afford no ground for the opposite party insisting on fresh security (o). How and at what Time obtained, &c.] The defendant had better apply to the plaintiff's attorney or agent for security for costs; and if it be refused, he may give two days' notice of the motion (p), and move the court accordingly on a proper affidavit (q). Where the rule is intended to operate as a stay of proceedings a previous demand of security is necessary; and in a late case, where three days' notice were given to the plaintiff's attorney of a motion to stay proceedings until security for costs was given, it was held that such notice was not equivalent to a demand and refusal, and the rule was refused (r). If it be not intended, however, that the rule should be a stay of proceedings, but merely a rule upon the plaintiff requiring him to give security for costs, a previous application to the plaintiff's attorney will be unnecessary (s), as also the notice of motion. But if the previous application be not made, the costs of the rule will not be allowed to the defendant (t); and, according to a recent case, he may have to pay the plaintiff's costs of the motion (u); therefore, in all cases, it is best to make it. It has been held that the security must be given for retrospective, as well as prospective costs (r); but in a later case Patteson, J., denied this (y). As the former case, however, was not cited, the point must be considered doubtful. The defendant may also, instead of applying to the court, obtain a judge's order for the security for costs, on taking out a summons for that purpose. (0) Jones v. Jacobs, 2 Dowl. 61. (p) See the forms, Chit. Forms, 592. (r) Huntley v. Buhver, 6 Dowl. 633. (s) Fountain v. Steele, 5 Dowl. 331: Baille v. De Bernales, 1 B. & Ald. 331: Hancock v. Smith, 2 Chit. Rep. 150: Jones v. Jones, 1 Dowl. 313; 2 C. & J. 207, S. C.: see Bass v. Clive, 3 M. & Sel. 983, cont. From the case of Otho, King of Greece, v. Wright, (6 Dowl. 12), it would seem that, if the defendant does not require a stay of proceedings, it is incumbent on the plaintiff to shew that the defendant has not applied to the former for security previous to obtaining the rule. (t) Rohrs v. Sessions, 2 Dowl. 710. (u) Fletcher v. Lew, 5 Nev. & M. 351; 3 Ad. & El 551, S. C. (1) Harvey v. Jacob, 1 B. & Ald. 159. (y) Orenden v. Cowper, 4 Dowl. 574. By a general rule of all the courts of H. T., 2 W. 4, r. 98, Chap. XII. "An application to compel the plaintiff to give security for When applied costs must, in ordinary cases, be made before issue joined" (*): for. that is, unless the delay can satisfactorily be accounted for; as, if the defendant did not before then know the fact of the plaintiff's absence abroad (a), or the like. And in all cases the defendant must make his application promptly, after he knows of the plaintiff's being abroad (b), and before he takes any subsequent step in the cause; and he cannot in general move after plea pleaded, unless he states in his affidavit that he was not apprized of the plaintiff's being abroad at the time he pleaded (c). He may, however, so move, though he has obtained an order for time to plead (d); and especially if the plaintiff have been guilty of laches in declaring (e); and the defendant may so move, if he applies promptly, after the delivery of a materially amended declaration, although he has pleaded to the original declaration (f). And he may move even after an agreement, before issue joined, to take short notice of trial generally, and not for a specific day (g): but not, it seems, if he have agreed to take short notice of trial for a particular day (h). Previously to the 1 & 2 V. c. 110, (the act for abolishing arrest on mesne process), the defendant could not so move until after bail had been put in (i) and justified (k), unless the defendant were in custody; in which case, if the plaintiff did not give security for costs within a reasonable time after being ruled to do so, the court, upon application, would have discharged the defendant upon entering a common appearance (1). But now, as all actions are commenced by writ of summons, it would seem that the application may, in all cases, be made at any time after appearance, though the defendant be arrested and bail not put in. Also, if there were two or more defendants, and one of them put in bail, he might have required the plaintiff to give security for costs, without putting in bail for the others (m). And, while proceedings on the bail-bond were pending, the court would not require the plaintiff to give security for costs, although bail had been perfected since the assignment of the bond (n). According to a recent decision in the Exchequer, the affi- Affidavit for. davit in support of the application need not, it seems, state in what stage the proceedings are: if the application be too (2) See Orenden v. Cowper, 4 Dowl. 574: Edinburgh and Leith Railway Company v. Dawson, 7 Dowl. 573: Young v. Rishworth, 8 Ad. & El. 479, n. See the former practice, Tidd's New Pract. 269: Walters v. Frythall, 5 East, 338: Adams v. Brown, 1 Dowl. 273; 2 C. & J. 207, S. C.: Kasten v. Plaw, 1 Moo. & P. 30. (a) Duncan v. Stint, 5 B. & Ald. 702; 1 D. & R. 348, S. C.: Dax's Pract. 141. (b) Anon., 2 Chit. Rep. 151: see Young v. Rishworth, 8 Ad. & El. 479, n. (e) Duncan v. Stint, 5 B. & Ald. 702; 1 D. & R. 348, S. C.: Brown v. Wright, 1 Dowl. 95: Wainwright v. Bland, 2 Č., M. & R. 740; 1 Gale, 333; 1 T. & G. 37, S. C.: see Fletcher v. Lew, 5 Nev. & M. 351; 3 Ad. & EL 551; 1 H. & W. 430, S. C. From which latter case it will be seen that the courts exercise a discretionary power to require security for costs, notwithstanding defendant has proceeded (d) Wilson v. Minchin, 2 C. & J. 87; 2 (e) Fry v. Wills, 3 Dowl. 6. (f) Otho, King of Greece, v. Wright, 6 Dowl. 12. (g) Edinburgh and Leith Railway Company v. Dawson, 7 Dowl. 573. (h) Montellano v. Garcias, 1 Bing. 67, (i) De la Preuve v. Duc de Biron, 4 T. (7) MS., T. 1820. (m) Carr v. Shaw, 6 T. R. 496. ᏢᎪᎡᎢ 1, BOOK IV. late, it is for the plaintiff to shew it in the affidavit, in shewing cause (o); but this seems questionable (p). When the affidavit proceeds upon the information and belief of the deponent, it should shew from what source his information is derived, and upon what his belief is founded (9). Time for giving. Amount and Time for Pleading after. Discharge of The court will not appoint any fixed time within which the security for costs shall be given by the plaintiff (r). The amount and sufficiency of the security is to be decided by one of the masters. It is no ground for increasing the amount of security fixed by the master, that the anticipated amount of costs will exceed that sum (s). Where the assignee of a debt brought an action in the name of the assignor, who was resident abroad, it was considered that the assignee's written undertaking for securing the costs was not sufficient (t). As to the time for pleading after the security is given, and when judgment may be signed for want of a plea, see ante, Vol. I. 156. Discharge of Security.] Where a plaintiff has been compelled to give security for costs on account of his residence abroad, the court will not order the bond to be cancelled on an affidavit that he has returned to England, and is resident there (u). (0) Jones v. Jones, 10 Law Journ. 77. (r) Broughton v. Jeremy, 1 H. & W, 525 (s) Kent v. Poole, 7 Dowl. 572. (t) Youde v. Youde, 3 Ad. & El. 311. (u) Badnall v. Haley, 7 Dowl. 19. CHAPTER XIII. OYER OF DEEDS, &c. CHAP. XIII. what Cases. What and in what Cases.] IN all cases where a deed, &c., What and in is pleaded with a profert, either by the plaintiff or defendant, the other party may have oyer of it, (provided the profert have been necessary) (a), and may then set it forth in his plea, if he will. Unless there have been a profert, however, oyer cannot be prayed; and therefore, if a deed be pleaded without profert, the other party should demur specially for the want of it, particularly if it be essential to his plea, &c., that the deed should be set forth. In debt on bond conditioned to perform covenants in an indenture, the defendant cannot crave over of the indenture, the bond alone in such a case being pleaded with a profert; but he must himself set forth the indenture with a profert, if it be necessary to his plea, and the plaintiff may have oyer of it (b). Oyer is generally craved, where it is essentially necessary that the deed, &c., pleaded should be set forth, before the party craving over can plead. So, if any part of a deed which ought to be stated, be omitted in a declaration, &c., or if the deed be erroneously stated, the other party should set forth the deed upon oyer, and demur(c). It is usually craved of bonds and other specialties; sometimes of letters of administration (d); and it has been allowed of policies of insurance (e). It cannot, however, be craved of a deed operating under the Statute of Uses (ƒ), nor of private acts of parliament (9), nor of letters patent or other records (h). If a record of the same court, however, be pleaded, we have seen (ante, 669) that the opposite party may demand a note in writing of the term and number of the roll on which such matter of record is entered or filed. cannot be craved of mesne process (i); nor can it be craved of an original writ (k). It include Inspection. It may be observed that the term "oyer" does not import Oyer does not inspection of the deed; consequently, in cases where the party is desirous of such inspection, he must take out a summons, or apply to the court for that purpose, as mentioned post, 1023. In one case in debt on bond with a profert, the court refused to make a rule on the plaintiff to allow an inspection of it, on the ground that defendant suspected it to be forged (1); but they granted it in another (m). ́ (a) Morris's case, 2 Salk. 497; Steph. PL 69: but see Cook v. Remington, 6 Mod. 237. It seems that the demand of oyer is a kind of plea. (Anon., 3 Salk. 119). (b) 1 Saund. 8: Cook v. Remington, 2 Salk. 498: 6 Mod. 237, S. C.; 2 Saund. 405, n. (1); 409, n. (2). (e) Hutt. 33: Stibbs v. Clough, 1 Str. 227; 1 Saund. 317, n. (2); 2 Id. 366 a. (d) Gerrard v. Early, 2 Wils. 413. (e) Boissier v. London Assurance Company, Hardw. 243. (f) Denman v. Bull, 9 Moore, 593; 3 (g) Jeffery v. White, 2 Doug. 477. (k) R. T., 19 G. 3: Boats v. Edwards, 1 (1) Chetwind v. Marnell, 1 B. & P. 271: and see post, 1024. (m) Anon., cited 8 Moore, 588. BOOK IV. Defendant -not bound to plead without ít. The party craving oyer is not bound to plead without it in cases where it is properly demandable (o); and this though the deed be lost (o). If it be craved where it is not demandable, the other party may treat the demand of oyer as a nullity, and sign judgment; but if, instead of doing so, he grant the oyer, the party who when not de- craved it may consider and treat the whole instrument as part of the other's plea (p), Demand of, mandable. At what Time mandable. At what Time and how Demandable.] Before the introducand how de- tion of the new practice, since the Uniformity of Process Act, oyer could not be demanded after the term in or of which the deed, &c., was pleaded (g), but it is conceived that this rule is now inapplicable. Öyer cannot be demanded after a plea in abatement (r). It must be also demanded before the time for pleading, or the time limited by a judge's order for pleading, has expired (s); or if made afterwards, it may be treated as a nullity (t). Where, however, the defendant after demand and refusal of oyer pleaded, in order to prevent judgment from being signed, it was held to be no waiver of right to oyer(u). And, under circumstances, the court have granted oyer, though sought for after the usual time allowed for it; and on an amendment it is frequently ordered that the defendant may have oyer of the deed or probate, &c. When granted Pleading after. Oyer, though upon the pleadings it seems, and is supposed to be, granted by the court, is in fact demanded and granted by the attornies (x). The demand is made by a note in writing (y). When granted, and Time for Pleading after.] The plaintiff and Time for is not bound to grant oyer within any limited time after it has been demanded (z). But it is generally his interest to grant it without delay; for the defendant, we have seen, (Vol. I. 155), is entitled to as many pleading days after the oyer has been given, as he had, yet unexpired, at the time of demanding it. But if the plaintiff demand oyer (a), the defendant must grant it within two days exclusive of that on which it is demanded; Sunday not being reckoned if it be the last of the two(b), otherwise the plaintiff may sign judgment as for want of a plea(c). The plaintiff has the same time to reply after oyer has been given, as he had at the time of the demand (d). How granted. How granted.] The demand (0) Sorsby v. Sparrow, 2 Str. 1186; 1 Wils. 16, S. C.: Daley v. Mahon, 6 Dowl. 395; 4 Bing. N. C. 335, S. C.: see Archbishop of Canterbury v. Tubb, 3 Bing. N. C. 789; 5 Dowl. 629, S. C. (p) Jeffery v. White, 2 Doug. 476: Longavil v. Hundred of Isleworth, 6 Mod. 27: Cook (Lady) v. Remington, Id. 237; 1 Saund. 317, n. (2): see 3 T. R. 153, n. (g) Roberts v. Arthur, 2 Salk. 497: 5 Com. Dig. 132, 133; 5 Co. 74, b: Mayor of London V. Gorrey, 2 Lev. 142: Rex v. Amery, 1 T. R. 149: Doct. Pl. 272: 22 H. 6, c. 30. (r) Longavil v. Hundred of Isleworth, 6 Mod. 28; 2 Salk. 498, S. C. (s) Rex v. Amery, 1 T. R. 150: Gerrard v. Early, 2 Wils. 413: Duke of Leeds v. of oyer, in the days of oral Vevers, Barnes, 268: Farrance v. Brignall, (t) Barber v. Satchwell, Barnes, 326: and see Sparkes v. Simpson, 2 B. & P. 379. (u) Goodricke v. Turley, 4 Dowl. 431. (x) Anon., 3 Salk. 119: Longaril v. The Hundred of Isleworth, 6 Mod. 28; 2 Salk. 498, S. C. (y) See form of demand, Chit. Forms, 594. (2) Webber v. Austin, 8 T. R. 356. (b) Page v. Divine, 2 T. R. 40. |