
    Crawford’s Heirs vs Logan.
    Error to the Garrard Circuit.
    Motion.
    
      Case 47.
    Case stated.
    Securilyforcosls can only be required of non-resident plaintiffs, or in ejectment the lessors of the plaintiff, and' the defendant is the proper person to demand it.
    
      Bonds for costs. Counter Security.
    
    
      October 20.
   Judge Marshall

delivered the opinion of the Court.

In this action of ejectment, on the demise of Crawford’s heirs against Logan, a rule, on motion of Ephraim and E. B. Smith, was made again si the plainliffs, that they should give counter security herein, on or before the calling of the cause at the next succeeding term, otherwise the suit to be dismissed. And the record of the succeeding term says: “The parties came by their attornies, and the plaintiff having failed to comply with the order of this Court entered at the last term, requiring counter security to bear Ephraim and E. B. Smith harmless in the payment of such costs and damages as might be awarded to the defendant, and of the fees which might become due to the officers of this Court; on motion of the defendant’s attorney, ordered that said rule be made absolute, that the suit be dismissed without, prejudice, &c., and the costs were adjudged accordingly.

The Smiths were neither plaintiffs nor defendants, nor tenants in possession. Their interference in the suit, is based upon the assumption, that they as sureties of the plaintiff, or of the lessors, had executed a bond for costs, &c. It is in that character that they obtained the rule. It appears, however, in point of fact, that although such bonds may have been executed in other actions brought by the same plaintiff, in the same Couit, no bond was executed in this case. Nor is there any order requiring the execution of such a bond in this case. It is only in the recitals in the bonds executed in the other cases, that we find evidence of the non-residency of the lessors, or of any fact upon which the requisition of a bond for costs might be made. And we are not satisfied that these other bonds which have been brought up, not in the record of this case, but in the distinct records of the cases to which they belong, can be regarded as composing a part of the present case for any purpose whatever.

In strictness, then, there was not only no ground for the proceeding in behalf of the Smiths, who had no connection with the case, but there was no ground apparent in the record for requiring bond and security for costs, even on motion of the defendant. Nor, although the fact of non-residency of the lessors, and the right of the defendant to have security for costs be understood to have been conceded does it appear that any motion requiring such security was ever made by the defendant. It is to be inferred from the bill of exceptions, that the counsel for the defendant who moved to make the rule absolute, was also counsel for the Smiths as parties to the rule. And even if this attempt to enforce the rule be regarded as the motion of the defendant, still it was but a motion to enforce a rule for which there was no plausible foundation, and to which he was no party, and he could not, by his interference, impart force and validity to it. He had no right to insist upon a dismissal as the consequence of noncompliance with a void rule. He could, in fact, occupy no other attitude in the enforcement of that rule, than the Smiths’ themselves could occupy. The failure to give counter security when there was in fact no security to be indemnified, could not, in any possible view of the case, be a ground for dismissing the suit.

But if the interposition of the defendant to enforce the rule, could be regarded as a motion on his part, to dismiss the suit, because bond for costs had not been given, and if it be assumed that there was in the case sufficient ground for requiring such bond, still as the defendant could take no advantage of the failure to comply with, the improvident rule which had been obtained by the Smiths, and as this motion would have been the first movement on his part towards requiring security for the costs, it would have been proper, in conformity with the general practice, and especially in view of the request and offers of the plaintiff’s counsel, to give time for procuring security and executing the bond. So that even in this aspect of the case, the dismissal of the suit at once, on motion of the defendant, and because a bond, which he had never required, had not been given, must be deemed to have been erroneous.

Can one who is 'Surety for-costs require of his principal, security to indemnify him in any <c»se? — Qu.

Bradley for plaintiffs; Turner and Kinkead for defendant.

We are not, however, to be understood as intimating that a security in a non-resident’s bond for the costs of suit, has a right, as a matter of course, to obtain such a rule as was granted in this case, and to have the suit dismissed upon the plaintiff’s failing to give him counter security. The present case does not call for a decision of this question. But we may remark that if in any case, such a security can be relieved by the dismissal of the suit, we should suppose that the circumstances must be extraordinary, involving fraud or imposition or the like. The security in the bond for costs has in general, no more right as such, to interfere with the suit for the benefit of the defendant, than the defendant has to interfere between the plaintiff and his security for the benefit of the latter.

Wherefore, the order dismissing the suit and the judgment for costs against the plaintiffs, are reversed, and the cause is remanded-for further proceedings.  