
    Clifton Anderson et al. vs. William Smith.
    Law. No. 20,636.
    J Decided May 25, 1882.
    
      i The Chief Justice and Justices Hagner and James sitting.
    When ¡i motion that plaintiff give security for costs is improvidently granted, the plaintiff’s remedy is to move to set it aside. If he does not do so the order remains in force, and when the case is called for trial, the plaintiff should on motion be nonsuited, unless a continuance he granted.
    Statement oe the Case.
    Action of ejectment to recover alot of ground in the county of Washington.
    The declaration was filed April 12, 1879. On the 9th of April, 1880, the defendant filed a motion “for a rule on the plaintifls to give security for all costs and charges that the said defendants may be put to in case the said plaintifls shall be nonsuited or judgment be given against them, they being non-residents of said District.”
    It did not appear by the record that any notice of the .motion was served upon the plaintifls.
    April 17,1880, the court passed the following order :
    . “Upon argument and consideration of the defendant’s motion, filed 9th of April, 1880, that the plaintifls, being nonresidents of the District of Columbia, give security for costs, it is ordered accordingly ”
    
      December 21, 1880, the order for security not having been complied with, the defendant filed a motion “ to enter a judgment of nonsuit, because the plaintiffs have not complied with the rule to give security for costs, laid on them on the 17th day of April, 1880.”
    On the same day the case was called for trial, and the above motion being pressed, the court refused to grant the same but proceeded to trial, whereupon the cause being submitted to the jury upon the evidence a verdict was rendered for the plaintiffs. Defendant then moved for a new trial upon his exception to the ruling of the court in overruling the motion to enter a judgment of nonsuit because the plaintiffs had not complied with the rule to give security for costs.
    J. B. Darnielle and J. McDowell Carrington for plaintiffs:
    The record shows that the application for the rule upon the plaintiffs to give security for costs was made ex parle without notice to plaintiff’s counsel. It further shows that no rule was ever issued or served on the plaintiffs, or their counsel, that no proof of the non-residence of the plaintiffs was ever presented to the court, and that the order of April 17, 1880, upon which defendant relies, was made improvidently, no foundation having been laid for its passage either under the rules of court or the act of assembly. Thompson’s Digest, 175. The order was therefore a nullity, and was so-regarded by the court, when the matter was brought to its-attention at the trial.
    Reginald Fend all and J. D. Coughlan for defendant:
    The defendant’s motion for nonsuit should have been granted.
    The motion for security for costs was made, the order requiring security was passed, a term of court had intervened, no security had been given as required, and the order now is and was in force when the motion for nonsuit was made, as authorized by the Maryland act of 1796, chap. 43. Thompson’s Digest, 176.
    
      Even though the order for security was passed at the trial term, and just preceding the nonsuit, the defendant would be entitled to judgment, as no continuance had been moved or asked for by plaintiffs, as required by said act.
   Mr. Chief-Justice Cartter

delivered the opinion of the court.

If this motion for security for costs had been granted improvidently, the remedy of the plaintiff’ was to have moved the court to set it aside. Not having done so, the order remained in force, and the defendant was under no obligation to be ready for trial. He had a right to expect that the court would not require him to make any further defense until the order of the court requiring security was complied with by the plaintiffs. The motion for nonsuit should therefore have been granted or the cause continued. Judgment reversed and cause remanded.  