Majority
p. 443SUPREME COURT. Trumbull C. Kimberly, receiver, &c. agt. Samuel Blackford. The Same agt. The Same. Monroe Special Term, January, 1861.
Headnote
A motion for security for costs against a plaintiff who sues as receiver, will be denied where it does not appear that there has been any mismanagement or bad faith in prosecuting the action. (Following the case of Kimberly agí. Stewart, ante, p. 281.)Motion by defendant in each case for an order that plaintiff file security for costs, &c.
J. L. Angle, for defendant.
H. Wilbur and S. Mathews, for plaintiff.
According to the views and principles adopted in the case of this plaintiff against Duncan L. Stewart, argued at this term, (reported ante, page 281,) the motions in these cases must be denied. It is not shown or intimated that the actions were not commenced and prosecuted in the most perfect good faith, nor does the moving affidavit show in any way that any legal defence to the action exists. The matters in this case shown, different from those in the case referred to, relate to the sufficiency of the fund of which the plaintiff is trustee, and do not,
p. 444
even in that view, make a case showing that the fund, when the trust shall be closed up, will be insufficient for the payment of all just claims against it.
The motions are denied, with seven dollars costs in each case.