
    The Commissioners of the Treasury v. Daniel M’Kie.
    In an action of debt against the securities of the sheriff, on his bond given to the Commissioners of the Treasury, the Court will, on motion, stay the proceedings at any stage before judgment, unless the party, for whose benefit the action is brought, will enter into a written consent, that judgment shall he entered up and execution issue against him for costs if he fail to prosecute his action, and if he reside without the State, some person living within the State shall enter into such written consent for him.
    Tried before Mr. Justice Colcock, at Spartanburgh, Spring Term, 1819.
    The defendant was one of the securities to the bond .of Laban P. Pool, late sheriff of Spartanburgh District, for the faithful performance of the duties of that office, and this was an action of debt against the defendant on that bond ; and on the return of the writ, a motion was made in the Circuit Court, on the part of the defendant, that the name of the person for whose benefit the action was brought, should be disclosed, and that he should give security for costs; but the presiding judge refused to grant the motion, and from that decision an appeal is brought up to this Court.
   *The opinion of the Court was delivered by

Johnson, J.

The Act of the Legislature requires, that the sheriff’s bond shall be made payable to the treasurers and deposited in their offices, and it makes it the duty of the treasurers to deliver to any person a certified copy, which copy is sufficient evidence of its execution. The treasurers, therefore, although the nominal plaintiffs, have no interest in the event of the suit, nor can they elect whether they will or will not be parties, but are mere instruments, in the hands of the law, to compel the sheriff to discharge the duties of his office ; it is not then just or reasonable, that they should be personally responsible for the costs of such an action, and I know of no principle or positive rule of law which imposes such a responsibility : and it is equally unjust and unreasonable, that a defendant should be brought into Court, at the mere caprice of an individual, whether he be injured or not, without knowing why or by whom, and consequently without any possible remedy for his costs, if the action be vexatious ; it is, therefore, fit that some remedy should be applied to the evil. The justice and necessity of some remedy must be apparent, and it is only necessary to inquire, whether this Court possesses the power of adopting an efficient one ?

Gist, for the motion. Davis, Solicitor, contra.

I know of no means by which the Court could compel the attorney of record to disclose the name of the real plaintiff in the action ; as the mere possession of the certified copy of the bond might be considered, under the practice of the Court, as sufficient warrant of attorney for bringing the action. Any order which the Court might make, could not effect the object of this motion, and it cannot, therefore, prevail in its present form, but may, I think, be attained in a different way.

There is no precedent in point, that I am aware of, but it appears to me, that one may be fairly deduced from the principle which governs the Court in relation to costs. One of the rules of Court requires, that a who resides without the limits of the State, shall enter into bond and security to the defendant for the payment of costs, if he fail to prosecute his suit to effect, and the Court will arrest the proceedings at any stage before final judgment, unless such bond is given. The Court may also compel a plaintiff to pay the costs of a nonsuit before they will suffer him to proceed in a second action for the same cause. The payment of costs is also frequently made the indispensable condition of a continuance. It would seem, therefore, that, pending an action, the costs are within the control, and subject to the order of the Court, and there can be no case which more strongly calls for its interposition than the present. I am, therefore, of opinion, that the Circuit Court ought, on a motion for that purpose, to stay the proceedings, at any stage before judgment, unless ths party, for whose benefit the action was brought, if he reside within the State, either personally, or by his attorney, fully authorized by warrant of attorney, to be filed with the record, enter into a written consent, to be indorsed on the record, or entered on the journals of the Court, that judgment should be entered up and execution issued against him for costs, if he should fail to prosecute his action : and if he reside without the State, that some person within the State, to be approved of by the clerk, should enter into such written consent ; and in this opinion I have the unanimous concurrence of my brethren present.

The present motion must, however, be dismissed.

Nott, Gantt and Richardson, JJ., concurred. 
      
       Aid., 1795. 5 Stat. 257, § 1, 3. • See Act of 1829, 6 Stat. 383, Act of 1839, 11 Stat. 26, § 1, 3, 4.
      
     
      
       See 74th. of the rules of 1837, which was prescribed 1834, 1 Hill, 558. Before that there was established practice, but no rule of Court. 2 N. & Me. 456; 11 Stat. 77, ü 22. See also County Court Act, 7 Stat. 232, § 43; 3 Hill, 340.
     
      
       1 Brev. 174; 2 Bay, 399; 25th rule of Court, Harp. 83.
     
      
       1 Bail. 533.
     