Morten v. Domestic Telegraph Co.

Headnote

Security fob Costs.—Removal of Plaintiff.

Security for costs cannot be required of a plaintiff, because of removal from the jurisdiction, unless he has actually removed, after the commencement of the action.

Motion for security for costs.

Action was commenced by the plaintiff, Alexander Morten, to recover balance due for services rendered. The answer was a general denial, and payment. After the case was on the short cause calendar, and had been adjourned once or twice, and finally set down for November 10, defendant’s attorney discovered that plaintiff was an Englishman, and has been ordered by his physician to return to England for the benefit of his health. When the case was called on November 10, the defendant’s counsel applied for and obtained a further adjournment to the 17th of the month. Plaintiff’s attorney, in opposing the motion, stated in open court that the passage of his client for Europe, had already been engaged for the 18th of the same month. Upon affidavits showing this state of facts, and also that the

plaintiff, on Ms departure, would leave no family, or tangible property or business connection, and that any judgment wMch defendant might obtain upon the trial, could not be collected unless security for costs was given, tMs motion was made.

I. 2 R. S. Edm. Ed. 644, § 2, is as follows: “If, after the commencement of the suit, the plaintiff shall become non-resident, or all the plaintiffs shall become nonresidents, or insolvent and be discharged or exonerated as aforesaid, or be sentenced to state prison for any term less than for life, the defendant may also require such security to be filed.” “ Shall become ” does not mean that the non-residence must be an actual fact ere the motion can be made ; in that case its language had been ‘ ‘ has become, ” or “ shall have become. ” “ Shall ’ ’ has in statutory construction the force of “may,” and sigmfies a possibility,' the fact of which will be determined affirmatively or negatively, as the judgment of the court on the papers before it shall determine (See Sedgwick on Construction of Statutes, 376, note).

II. This construction is in harmony with the cases which hold that the fact that the absence is only temporary, or involuntary, is no answer to the application for security (See Gilbert v. Gilbert, 2 Paige, 603 ; Long v. Hall, 3 Sandf. 729 ; Gelch v. Branby, 1 Bos. 657).