
    Thomas Davidson vs. William G. Hackstaff, impleaded, &c.
    A motion to require Plaintiff to file security for costs where Defendant is required to put in special bail to the action, cannot be made until after special bail has been put in and perfected. Gr, Pr. 2d ed. 50?, 6 HE1, 257.
    
      December Special Term, 1846
    
      Motion by Defendant that Plaintiff file security for costs.—This was an action of trespass, assault and battery. Special bail was required, which Defendant filed, and gave notice thereof to Plaintiff’s attorney, on the 7th November last. Defendant moved on his own affidavit, which stated that the Plaintiff did not, to his knowledge or belief, reside within the jurisdiction of this court, but was a transient person, having no family nor fixed place of abode, nor other occupation than that of an ordinary seaman. Defendant’s attorney stated that special hail had been put in; and that no declaration had been filed; that he had been informed and believed that the Plaintiff was not a citizen of the United States, either by birth or naturalization.
    The affidavit of Plaintiff’s attorney in opposition showed, that special bail was not perfected at the time notice of this motion was served, nor was it then (now) perfected.
    Plaintiff’s counsel insisted that double time had not then expired, it might be that the bail would turn out to be mere straw bail. The Defendant was not in court for the principal purposes of the suit until bail was perfected. The motion for security for costs could not regularly be made until bail had been put in and justified. Gra. Pr., 2d ed., 507, and authorities there cited.
    Defendant’s counsel insisted, that Defendant could move before special bail perfected, he was in court on filing special bail. Gra. Pr., 2d ed., 176, sec. 8, title, Appearance. Redmond v. C. Russel, impleaded, 12 J. R., 153, 154.
    G. R. J. Bowdoin, Defts Counsel. A. S. Garr, Defts Atty.
    
    M. Fairchild, Plffs Counsel. J. Hosford, Plffs Atty.
    
   Jewett, Justice.

Notice of this motion was too soon, the defendant had not appeared by putting in and perfecting bail to the action. Gra. Pr., 507 ; 6 Hill, 257.

Motion denied with $7 costs.  