Majority
p. 342The People, ex rel. Fuller, vs. Oneida Common Pleas.
Headnote
Where a relator, who has sued out a mandamus, removes from the state intermediate the issuing of the alternative and peremptory writ, proceedings will be stayed until security for costs be filed.It is no answer to the motion, that the defendant, with knowledge of the removal of the re- . lator, had taken steps in the cause on his part.
The power of staying proceedings until security for costs be filed, is an incidental power, and may be exercised independent of the statute.
J. A. Spencer
moved to stay proceedings in a mandamus case until security for costs should be filed, because, after the alternative mandamus issued, the relator had removed to Michigan. He cited 10 Wendell, 598; 2 R. S. 620, § 1, 2; id. 586, § 54, &c.; Jac. L. Dict. Mandamus ; Hallock’s Costs, 331, 332, 325, 439, 2 R. S. 613, § 3, sub. 3; Laws of 1833, p. 395, § 6; 2 Wendell, 301; 3 id. 304, 10 id. 578.
J. W. Jenkins opposed,
because, after knowledge of the removal, the defend ants had taken steps in the cause by returning to the writ, taking a rule, receiv ing a demurrer, and interposing a rejoinder. He also insisted, that the statute requiring security does not extend to a suit by mandamus. He cited 1 R. S. 347, § 1; Graham's Pr. 80; Anon, (9 Wendell, 472;) Graham's Pr. 432; 5 Barn. & Ald. 702, and cases there cited.
By the Court,
[653] The power of staying proceedings till security for
p. 343
costs shall be filed, is incidental, and was long exercised independent of the statute, and may still be so exercised. Mandamus is clearly within the principle of the common law power. Delay, and taking steps on the part of the defendant with knowledge, seems to be an answer to the motion by several English authorities, ( Graham's Pr. 507, 2d ed.,) but has never been so received in this court. The contrary has been held in a like case. (Jackson, ex dem. Williams, v. Miller, 3 Cowen, 57.) Motion granted.