Majority
p. 644*Massey and others v. Gillelan and others. Nov. 17th. insisted that by the answer of Gillelan sufficient was admitted to show the complainants must succeed in the suit, and for that reason Gillelan was not entitled to demand security for costs.
Headnote
Where the complainants became insolvent pending the suit, and assigned all their interest therein to a third person, the assignee was not permitted to proceed with the suit in their names without giving security for costs.[1]G. C. Tboup presented the petition of the defendant Gillelan setting forth among other things that the complainants were insolvent, and that this suit was carried on for the benefit of the assignees to whom the subject matter of the controversy had been assigned; and praying that security for the costs might be "given by the complainants or the assignees. He cited Ketchum & Blake v. Clarke, ( 4 Johns. Rep. 484 ,) and Waring v. Baret, (2 Cowen’s Rep. 460.)
S. A. Foot, for the complainants,
p. 645
The Chancellor :—The defendant is entitled to seenrity for costs. Although the parties for whose benefit the suit is now continued may be compelled to pay the costs of the subsequent proceedings, the remedy against them as to the costs already accrued is at least doubtful. They cannot however be permitted to continue the proceeding without giving sufficient security to cover the costs already incurred by the defendant, as well as those to which he may hereafter be subjected. There is nothing in the pleadings as they now stand which can enable me to determine what will be the final decision in the cause on the question of the costs. The decision on the motion to dissolve the injunction is not conclusive, as several matters of defence were set up which are not responsive to the bill, and for that reason were not taken into consideration on the decision of that motion.
The complainants or their assignees must within thirty days after service of a copy of the order, give security for the costs, by a bond in the penalty of $250, with two sufficient sureties to be approved of by the assistant register and filed in his office. And in default thereof the bill in this cause must be dismissed with costs.