J. J. Osborne v. . Joseph Henry

PeaksoN, C. J. At first we were inclined to the opinion that all questions of costs and security for the prosecution, *355 • ought to be left to the legal discretion of the Judge in the Court below, and we were reluctant to interfere with his ruling because he being on the spot, could form a better opinion of what would further the ends of justice, from the surroundings-of the •case, than we are in most cases able to do ; such matters as a general rule should be left to him. But our conclusion is, that defendants are entitled to invpke the supervisory power of this Court, in order to protect their rights, to be secured in regard to the costs of the litigation. Here the assignee in bankruptcy proposes to take the place of the original plaintiff, and to proceed with the case for the 'benefit of the fund in bankruptcy, without making any provision for the costs of the prosecution. Ho puts his application upon an affidavit, which is wholly deficient in that degree of candor and fair dealing, which a Court has a right to expect. “Said bond was good at the beginning of the Court,” leaving it to be inferred that it was not good now ; “he is not able to give better security,” leaving it to be inferred that he is not able to give the security required by law; and on this he asks “to be allowed to prosecute with existing security,” that is, no .security at all. Had Osborne made application to sue “in forma pauperis” ■it would have presented the question whether an assignee in bankruptcy can be allowed to sue without giving security or .making a money deposit, which it seems would fall under the •principle that an executor or administrator is not embraced in the provision for suing “in forma pauperis,” but he seeks to get rid of that objection on the ground of an “ existing security,” which as we have seen is worthless. • Even supposing that the security of Israel, the original plaintiff, was solvent and willing to continue bound in the new aspect, which the case 'had assumed by the intimation of Osborne the assignee. In the absence of both of these facts, we see no reason why the defendant has not a right to [insist upon being secured as ■to the costs of-the litigation. This objection was taken in “apt fame.” *356 There is error in the ruling of His Honor, which the Court can review : Osbirne when he applied to-be made plaintiff,, and to be allowed to proceed with the action- fór the benefit of the fund in bankruptcy, ought to have been required to give-an undertaking or make a money deposit out of the fund, sufficient to cover the costs. If the objection had not been taken in “apt time.” and the case had been allowed to go on until it was called for trialj. His Honor might well have exercised the discretion to order the trial to proceed, without further security, inasmuch as no* further costs would be incurred, and the motion to dismiss at' that stage would have been a manifest attempt to stifle justice.. Error, this will be certified. Per Curiam. Judgment reversed.