
    Long against Majestre, administratrix, &c. and Tardy.
    
      Sept. 9th.
    Though the 54th rule of the court, (June, 1806,) where a 'non-resident files a bill, requires that security for costs should be filed ; and if the solicitor for the plaintiff proceeds without filing security, he is liable for'costs to the amount of 100 dollars; yet the court, if application for that purpose is made in due season, that is, before the answer is put iu, or the first opportunity-after the defendant knows of the fact of the non-residence of the plaintiff, will order all proceedings to be stayed, until adequate security for costs, that is, to a greater sum than 100 dollars, is filed by the plaintiff. In this case, the court ordered a bond, with surety, to be executed to the defendant, for 750 dollars, and filed with the register.
    A RULE was granted, on the 13th of August last, to show cause why proceedings should not stay until adequate security for costs was filed; on the petition and affidavit of the defendants, that the plaintiff resided in the kingdom of France, and seeks, by his bill, an account of partnership transactions, alleged to have taken place partly in Europe, and partly in the United States. The answer of Majestre, the administratrix, had not yet been filed, and the other defendant had demurred to part of the bill.
    
      Burr, for the defendants.
    
      Harris, contra.
   The Chancllor.

The 54th rule of this court, of June, 1806, requires security for costs, when a non-resident files a bill. The extent of that security, by the plaintiff, is not mentioned in the rule, and, of course, must be left to the discretion of the court. But if no such security be filed, and a solicitor prosecutes the suit, he is made responsible to the amount of 100 dollars, and no more. This does not, how,jver, prevent the court, in cases requiring it, from ordering security in a greater sum than what the solicitor stands charged with. The old rule in the English court of chancery. where the plaintiff lived abroad, was 40Z.; but Lord. Hardwicke said it was too low, and the court frequently increased it upon terms; it did so in the case of Gage v. Lady Stafford, (2 Ves. 556.,) from 40l. to 300l. The defendant is not bound to accept of the solicitor’s security under the rule. He is entitled to a sufficient freeholder. The solicitor is charged, in consequence of his omission, to see that his client files the sufficient security, and to provide, in all cases of non-residence, some indemnity for costs.

If, therefore, the defendant applies in season, he is entitled to adequate security for costs. The rale is, that he must apply before answer, and at the first opportunity, when the fact of non-residence appears upon the face of the bill; and if it does not, he must then apply as soon as the fact comes to his knowledge, which may be in any subsequent stage of the suit. (Meliorucchy v. Meliorucchy, 2 Ves. 24.)

I consider the application, in this case, in season, as to the defendant Majeslre, but not as to the other; and, consequently, the suit, as to her, must be stayed, until a bond to her, with one sufficient person, to he approved ofby the register or assistant register, in 750 dollars, be executed and filed.

Rule accordingly.  