
    MECHANICS’ BANK OF NEW YORK v. GODWIN, CLARK, & CO.
    Where the plaintiffs (a foreign corporation) filed their declaration in season,* the court refused an application to require them to file security for costs made by the defendants at the term next after the return of the writ, who offered no excuse for neglecting to make an earlier application, nor any affidavit of merits.
    
      Vanarsdale, for the plaintiffs moved for judgment in default of a plea.
    
      A. S. Pennington, for the defendants,
    resisted the motion for judgment, and prayed a rule on the plaintiffs to file security for costs, &c. In support of his motion he read an affidavit showing that the plaintiffs are a foreign corporation, and cited Rev. Laws, 428, see. 3.
    
      Vanarsdale was proceeding to reply,
    but was stopped by the court.
   Per curiam.

The application for security for costs, comes too late : a declaration was filed in season, and the defendants have neglected to plead ; they are in default, and the plaintiffs are regularly entitled to judgment. The defendants might have made this application at the last term, or, at least, they ought to have given notice to the plaintiffs, before their time to plead was out, that they required security for costs. If such notice had been given, the plaintiffs might have expedited the cause by immediately filing security, and giving notice thereof to the defendants. Instead of doing so, the defendants lay by; omit to plead, and now make their own neglect the basis of this application, by urging that the cause is not yet at issue. Such a course of practice would compel every non resident plaintiff to file.security for costs, as soon as he commences his action, or be unavoidably subjected to a term’s delay; whereas the statute only requires him to give such security when called upon to do so, before issue joined. If there was an affidavit of merits, the plaintiffs might be required to file security for costs, and the defendants be let in to plead on terms.

But in this case no excuse is offered for neglecting to make an earlier application for security for costs; nor is there any affidavit of merits—the defendants’ motion must therefore be denied, and the rule for judgment granted.  