Majority
p. 303[577] Gomez vs. Gam.
Headnote
'Security for costs cannot be required of a plaintiff on the ground’that his person has been exonerated from imprisonment, where the discharge was granted long since ; to entitle a defendant to succeed on such motion, he should show the present-inability of the plaintiff to pay-costs.Besides, it is questionable whether the statute applies to suits commenced previous to its enact ment.
On an affidavit of the defendant that the person of the plaintiff had been exonerated from imprisonment pursuant to law, and that the defendant had not since contracted any debt to him, Judge Edwards made an order that the plaintiff file security for costs within twenty days, or show cause at the next special term of this court; and in the mean time -the plaintiff’s proceedings were stayed.
The plaintiff now shows for cause, that the suit was commenced before the passing of the statute requiring security for costs, (2 R. S. 620, § 1;) and that the discharge of the plaintiff from imprisonment, mentioned by the defendant, was granted in October, 1826.
By the Court,
The language of the statute is prospective, “ when a suit shall be commenced,” and there may be some doubt whether it will apply to an action commenced before the year 1830. But there is another objection to requiring security in this case. The plaintiff was exonerated from-imprisonment nearly ten years ago ; and there is no proof that he still continues insolvent. The statute provides that the defendant may require security for costs, when a suit shall be brought in the name of any person being insolvent, who shall
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have been discharged from his debts, of whose person shall have- been exonerated from imprisonment. If the discharge had been recent, no further evidence of insolvency would have been necessary: but after the lapse of nine or ten years the party should furnish some further proof of the present inability of the plaintiff to pay his debts. The order requiring security and staying the plaintiff’s proceedings must be discharged.