Majority
p. 13MONTAGUE a. BASSETT. Supreme Court, First District; At Chambers, January, 1864. contended that the bond was insufficient, inasmuch as it imposed upon the defendant the condition of first demanding payment from the plaintiff, citing Nelson a. Bostwick ( 5 Hill, 38 ), and Tallmadge a. Wallis ( 1 How. Pr., 100 ). insisted that the bond was in due form.
Headnote
Security for Costs.—Form of Bond.The bond required by 2 Rev. Stat., 620, § 4, as security for costs in certain cases, must be conditioned for payment on demand of the obligors, and not on demand of the plaintiff.
Motion to require a further bond as security for costs.
This action was brought by Ebenezer Montague against Charles R. Bassett. On motion, the plaintiff was required to file a bond as security for costs, “ pursuant to the provisions of the Revised Statutes, conditioned to be void if the obligors named in said bond pay on demand all costs,” &c. The plaintiff filed a bond conditioned to be void if the plaintiff should pay on demand all costs.
Bogardus & Brown, for the motion,
W. S. & C. E. Sears, opposed,
The bond filed by plaintiff, under the order requiring security for costs, is defective. It is made, “on demand of the plaintiff.” It should be on demand of the obligors.
p. 14
I can see no reason why the defendant should he compelled to travel out of the State to make the demand for his costs in case he succeeds.
Ten days is given to the plaintiff in which to file a new undertaking, and serve copy on defendant’s attorney, with notice of justification of sureties; also to pay' $10 costs of motion. In the event of his failure to comply with these requirements within the above time, his complaint must be dismissed. (Tallmadge a. Wallis, 1 How. Pr., 100 .)