Majority
p. 559Coryell vs. Davis. now moved that the order be vacated.
Headnote
Where a plaintiff commenced an action on the case for negligence, and, after issue joined, obtained a discharge as a bankrupt; held, that he could not be obliged to file security for costs.Case for negligence. After issue joined, the plaintiff obtained his discharge as a bankrupt under the late U. S. bankrupt act; whereupon a commissioner granted an order that the plaintiff file security for costs in twenty days <fcc., and that in the meantime all proceedings be stayed.
E. S. Sweet, for the plaintiff,
A. Munger, for the defendant.
The 2 R. S. 515, 2d ed. § 1, sub. 3, and § 2, apply in terms to cases where the suit in which security is required was brought for the collection of some debt contracted before the assignment of the plaintiff’s estate. Here the action is for a tort. Tidd lays down the rule that where the action is brought or proceeded in by the bankrupt, certificated or uncertificated, for the benefit of his assignees, security
p. 560
may be required. (Tidd, 536, Am. ed. of 1840.) But it seems otherwise, if he sue for his own benefit. (Id.) Thus there is no general principle, independently of the statute, calling for this order. The statute not applying, the order is therefore discharged.
Rule accordingly.