
    Champlin vs. Petrie.
    A defendant may move for judgment as in case of nonsuit, in a cause which has been referred, notwithstanding that he has stayed the plaintiff’s pro. ceedings until security for costs be filed.
    Security for costs. This cause was referred to referrees at the last August term. In January, on an affidavit that the plaintiff since the commencement of the suit had obtained a discharge from his debts as an insolvent debtor, an order was obtained that the plaintiff file security for costs in ten days, or shew cause in twenty ; which order was made absolute in March, and the proceedings of the plaintiff stayed. The defendant now moved for judgment as in case of nonsuit.
    
      jD. Burwell, for defendant.
    
      E. P. Hurlbert, for plaintiff.
   By the Court,

Savage, Ch. J.

The defendant is entitled to the effect of his motion. To compel him to notice the cause for a hearing, and thus put the plaintiff out of court, would deprive him of the remedy given by the Revised Statutes (vol. 2, p. 620, § 2.) He has a right to stay the plaintiff's proceedings until security for costs be given ; and if the plaintiff neglects to comply with the order made for that purpose, the defendant is not bound to incur any further costs by noticing the cause for a hearing, but may apply to this court for judgment as in case of nonsuit, which is accordingly granted unless the plaintiff within 20 days file security for costs and notice the cause for hearing.  