State ex rel. Fallon v. Layman

Brent, J., delivered the opinion of the Court. When this' case was first reached upon the docket, it was continued under the rule, hut afterwards the continuance was struck out by consent, and the case submitted on the 21st of February. [192] We shall dispose of it in a very few words. The suit is brought on a sheriff’s bond, in the name of the State, use of Michael Fallon, and a rule was laid upon the plaintiff, “ security for costs.” It is contended, that the State being the legal plaintiff, it is not a case in which the defendant can demand the security. Art. 21, sec. 10, of the Code provides, that the defendant may have a rule on the plaintiff to give security for the payment of the costs and charges ivhich may be recovered against Mm in such action, if the plaintiff is not a resident of the State. In a form of action like the present, the State permits its name to he used by the party beneficially interested, but is in no event answerable for any part of the costs. They are chargeable against the party for whose use the suit is instituted, and may be recovered against him. Art. 21, sec. 8. He is the plaintiff within the spirit and meaning of these sections of Art. 21, read together, and it is unimportant that he is but the equitable plaintiff. He is the party plaintiff chargeable with costs, and the language, as well as the spirit and intention of the law, embraces him. There can be no .doubt, if he is a non-resident of the State, of the power of the Court to lay the rule. The practice of the Courts has given this construction to the law, and we think it is the correct one. The next objection to the rule is, that it was improvidently laid, there being no proof offered of Fallon’s being a non-resident of the State. The motion in this case is to strike out the rule which had been made absolute. All the presumptions are, that the Court acted upon sufficient proof in laying the absolute rule for security, and the motion to strike out imposes upon the appellant the necessity of showing affirmatively the contrary. This he has not done, for there is no proof upon either side to be found in the record. This leaves the presumption in favor of the “rite acta” on the part [193] of the Court, and such presumption is now conclusive upon us. (Decided 2nd March, 1877.) The judgment of the Court helow will, for these reasons, he affirmed. Judgment affirmed.