
    Newman vs. Landrine.
    The right of a defendant in equity to require from the complainant, who is resident abroad, security for costs, does not rest alone on the provisions of the statute. It is an ancient and well established rule, that if the complainant is resident abroad, the court, on the application of the defendant, will order him to give security for costs, and in the meantime will direct all proceedings to be stayed.
    Nor is it necessary that tire complainant should reside out of the state at the time of filing his bill to entitle the defendant to the order. It will lie granted if the complainant goes abroad to reside after the commencement of the suit.
    Hut the application for security must be made before the defendant takes any step in the cause after notice of the nonresidence or removal. If after knowledge of the nonresidence, defendant takes any step in the cause before applying for the order, he thereby waives security for costs.
    When the defendant’s affidavit on an application for security fails to show clearly that the defendant did not know of the complainant’s removal before taking the last step in the cause the application will be denied
    This was a motion, on the part of the defendant, for an order directing the complainant to file security for costs, on the ground that he had removed from the state after filing his bill.
    
      
      Mr. Slaght, for the motion.
    There is no doubt of the power of the court to grant this application. Brightly on Costs 258-9-60; Sharp v. Buffington, 2 Watts & Serg. 454; McGary v. Crispin, 4 Penn. Law 353; 2 Dickens 776, Anonymous; Den v. Wilson, 2 South. 680.
    
      Mr. Borcherling, for complainant, contra.
    
    The party has waived his right by taking a step in the cause since complainant’s removal from the state. Price v. White, 2 Molloy 361.
    These cases of security, being ordered, are usually based on an allegation of insolvency or bankruptcy. Gilbert v. Gilbert, 2 Paige’s Ch. R. 603.
    In this case complainant denies his insolvency.
   The Chancellor.

The right of a defendant in equity to require from the complainant, who is resident abroad, security for the costs of 'the suit does not l’est upon the provisions of our statute. It is an ancient and well established rule, that if the complainant is resident abroad, the court, on the application of the defendant, will order him to give security for costs, and in the meantime will direct all proceedings to be stayed. 1 Daniell’s Pr. 35; 1 Hoffman’s Pr. 200.

Nor is it necessary, to entitle the defendant to the order, that the complainant should reside out of the state at the time of filing his bill of complaint. It will be granted if the complainant goes abroad to reside after the commencement of the suit. Anonymous, 2 Dickens 776; Weeks v. Cole, 14 Vesey 517; Dyott v. Dyott, 1 Mad. 179 (Am. ed.); 1 Daniell’s Pr. 36; 1 Smith’s Pr. 558; 1 Hoffman’s Pr. 200.

But if the fact of the nonresidence of the complainant appear upon the face of the bill, or is known to the defendant, he must apply for security before answer or taking any other step in the cause. If after notice of nonresidence, the defendant takes any step in the cause, he thereby waives security for costs. Meliorucchy v. Meliorucchy, 2 Vesey, sen. 24; Craig v. Bolton, 2 Brown C. C. 609; Dyott v. Dyott, 1 Mad. 109 (Am. ed.); Prior v. White, 2 Molloy 361; Long v. Tardy, 1 Johns. Ch. R. 202; Goodrich v. Pendleton, 3 Johns. Ch. R. 520.

At the commencement of this suit the complainant resided in the state. It so appears upon the face of the bill. He removed from the state to Connecticut, in November, 1861. The answer was filed on the nineteenth of November. On the fourth of February, 1862, the defendant obtained an order extending the rule for closing testimony. Whether the answer was filed before or after the complainant left the state is not clear, nor is it material. One step, at least, has been taken in the cause by the defendant since the complainant ceased to be a resident of the state. There are circumstances tending to show that the defendant had notice of the change of residence by the complainant before the making of the order on the fourth of February. The fact of notice is not denied by the defendant in his affidavit. He states that he supposed that the complainant was a resident of this state ‘ ‘ until a short time since. ’ ’ He also states that, on the twenty-first day of March, he visited Connecticut, and found the complainant residing there upon a farm, and then learned that the complainant moved out of this state into the state of Connecticut, and upon the said farm, in the month of November, A.D. 1861. All this may be true, and yet the defendant may have had notice before the fourth day of February that the complainant had removed from this state to reside elsewhere. Under the circumstances, there should have been a full and explicit denial, by the defendant, of notice of the complainant’s change of residence at the time of taking the last order in the cause.

The affidavit on the part of the complainant, not having been taken pursuant to the rule of court, is excluded as incompetent evidence.

The motion is denied, costs to abide the event of the suit.

Cited in Binns v. Mount, 1 Stew. 25.  