Majority
Headnote
A plaintiff’s attorney is liable for costs only in tile cases proscribed in section 3268 of the Code, or, in other words, only in the cases in which the defendant is entitled as matter of right to security for costs.The plaintiff’s attorney is liable for the defendant’s costs to-an amount not exceeding $100, until security is given, in all cases where a defendant is entitled as of right to require security for costs, as prescribed in section 3268 of the Code (Code Civ. Pro. § 3278). The only portion of section 3268 claimed to be applicable to this case, is that which relates to plaintiffs who are non-residents of the county. It is not claimed that the board whose name appears in the title of the action as the plaintiff is a non-resident, but . it is insisted by the defendant that E. M. Killings, on whose relation the action was commenced, is to be regarded as the plaintiff for all the purposes of this motion. I cannot assent to this interpretation of the law. The term plaintiff has a weil-deiined meaning. It designates the person in whom the cause of action is vested (2 Bouvier, 339), while the term relator, as applied to legal proceedings, is a creature of the statute (Id. 439). The cause of action belonged to the board, and the relator was the mere informer on whose information the action was commenced. It is true that under section 3271 the relator, as a person authorized by statute to sue, might, in the discretion of the court, be required to give security for costs, but no personal liability is imposed upon the attorney in such discretionary cases upon the failure of the client to give the required security. The only penalty imposed therein is a stay of further proceedings, which is followed in