Van Slyck v. Wolcott

By the Court, Upson, J. The provision in the statute, § 4115, Comp. Laws, authorizing the Court to require a plaintiff to give security for costs in civil actions pending therein, “ when it shall appear reasonable and proper” so to do, was manifestly made for the benefit of defendants, and therefore may be waived by them if they see fit not to call seasonably for its exercise. When the application' is made promptly the motion is still addressed to the sound discretion of the Court, and it must be made to appear i! reasonable and proper” to grant it before the'parties applying can appropriately callupcn the Court to exercise this power under the statutfe. In this case the'parties all reside in this city, are personally known to each other, and are presumed to have had reasonable knowledge of each other’s pe-cuniary circumstances, at least prior to or at the time of joining ifsuo herein, yet they have (Seen fit to wait until the third term subsequent to the joining of issue before making this application, and in their affidavit make no explanation of, and give no reason for the delay. Reasonable diligence in making the application should be re- ■ q aired, and that seems not to hare been exercised in this case. Even-under §4113, requiring all origiual writs and declarations for the commencement of suits, where the plaintiffs are not inhabitants of the Slate, to be,before the service thereof, indorsed by some sufficient person who is an inhabitant of this State, a paj’ty is required in case of its omission by a plaintiff to take advantage of itin season, and if he. does not he has been adjudged [67] to waive it. Carpenter vs. Aldrich, 3 Met., 58. See also as to the rule in such eases requiring the motion to "be made promptly, and in the first instance, or it is waived, Adams vs. Miller, 12 Ill. 27; and 14 Ill., 71; Edwards vs. Helm, 4 Scam., 143; Robertson vs. The Co. Com'rs, 5 Gilm., 559; Randolph vs. Emerick, 13 Ill., 344; Frasrue vs. Zimmerly, 25 Ill., 202; 2 Ark., 109; 2 Rich., (S. C.,) 10. The English practice also requires the defendant to make his application promptly- after he knows of the plaintiff’s being abroad, and before he takes any subsequent step in the cause.— Grah. Pr., 507; 2 Chit Archb., 864; 5 B & Ald., 702; 1 D. & R., 348; 1 Moore & Payne, 30. See also cases cited in margin of Comp. Laws, § 4113, by compiler. The motion in this cause comes-too late, and under all the circumstances it does not “ appear reasonable and proper” to grant it, and it must be denied.