Opinion
(June Term, 1846.)
A plaintiff in a court of equity is bound to give security for costs in the same manner as a plaintiff in a suit at law.
Appeal from an interlocutory order of the Court of Equity of STOKES, at Spring Term, 1846, his Honor, Judge Settle, presiding.
Morehead and Kerr for the plaintiff.
No counsel for the defendant.
The following case appears from the record:
The plaintiff obtained a decree in the court of equity (294) against William Moore for $3,285.08, and having made the requisite affidavit, he sued out a scire facias against Banner, suggesting therein, according to the Act of 1806, that Banner was in possession of certain slaves, belonging to William Moore, and concealed them, and also that William Moore had fraudulently conveyed to Banner certain other slaves without any valuable consideration, for the purpose of delaying, hindering and avoiding the payment of the plaintiff's debt.
At the return of the writ, Banner's counsel moved the Court, that the plaintiff should be required to give security for the costs, he not having before given any. The Court refused a peremptory rule at that time, but granted a rule on the plaintiff to show cause at the next term, why he should not give security for the costs, and, in the meantime, ordered the defendant, Banner, to make his declaration in writing and on oath, as required by the act, Rev. St., Ch. 50, sec. 5, 6. He did so immediately, and therein stated, that in 1825 he married the daughter of William Moore, and that the said Moore did not then owe the plaintiff any debt, and was fully able to pay all his debts, and that, soon after his marriage, the said Moore transferred to him a negro woman named Nancy, and he then took her into his, the defendant's, possession, and kept her about ten years, during which time she had issue two children, named Susan and Henry; and that the said Nancy then died, but the said two children are still in possession of him, Banner, and are claimed by him. He further states, that in 1843 he purchased from William Moore another negro, named Will, at the price of $676, and that the same was a full and fair price; and he avers, that he received the slave Nancy and purchased the slave Will, bona fide and without any intent to defraud the plaintiff or any creditor of William Moore.
The plaintiff did not require any issue to be made upon the answer, nor make any motion that the Court should (295) thereon order any of the negroes to be delivered up and made subject to his decree. At the next term, the counsel for the defendant moved the Court to make the rule of the preceding term absolute, so as to compel the plaintiff to give security for the costs or to dismiss his suit. But the Court refused the motion and discharged the rule; and thereupon the defendant, by leave of the Court, appealed.
As the appeal is from an interlocutory order, our attention is restricted to it by the act allowing such appeals. We are to consider, then, that this is a proper proceeding in the court of equity, and our only inquiry is, whether the plaintiff ought to be ruled to security for costs.
It has not been contended at the bar, that, generally speaking, plaintiffs in equity are not to give security for costs; but it was admitted to be the common course, and it seemed to be yielded that it was proper. The masters and the courts have acted, as if the Act of 1787, ch. 276, embraced as well as the courts of equity as the courts of law, which last only are, properly speaking, courts of record. But it does not seem material, whether courts of equity are directly within the enactments of that statute or not; for, if the statute proprio vigore does not embrace them, the rule ought to be adopted by the court of equity, because it is prescribed to the courts of law. The same reason extends to both courts; and it is the course of the courts of equity to follow the courts of law in such matters. In England, the rule at law is to require security for costs from all plaintiffs without the jurisdiction, unless they be abroad temporarily, or involuntarily, as, for example, officers or privates in the army or navy, or otherwise in the public service. As a matter of course, the court of (296) equity adopted precisely the same rule. And it is acted on, not as a thing in the discretion of the court in each case, according to its circumstances; but as a thing of course, according to a settled law of the Court, corresponding with the rule at law, and embracing every person alike, rich and poor. Beames on Costs, 178. In the same manner, here the court of equity has followed the courts of law, and the practice of requiring security for costs has prevailed so universally as to establish it as a part of the law of that court, whether it be strictly within the Act of 1787 or not. So, indeed, it seems to have been regarded by the Legislature itself; for in the Act of 1831, Ch. 46, the courts of law and equity are expressly placed on the same footing, and are respectively required to give a judgment or decree, on motion, against the surety in the prosecution bond for the defendant's costs.
But it was supposed, that the present proceeding is not within the acts because it is not an original suit, but a derivative and dependent proceeding. The answer to that is, that the statute expressly gives costs between the parties to the suits under it; and, as the defendant may thus have a decree for his costs, he is entitled to have them secured. It is true, that upon the face of the answer, the issue of the slave Nancy, whom the father-in-law "transferred," as the answer says, to the defendant at his marriage, but not stated to be for value or in writing, remains, apparently, the property of the donor, who is yet living; and, therefore, subject to be declared liable to execution for the plaintiff's debt. Therefore, supposing the Act of 1806 to extend to the court of equity, there may be but a remote probability, that the plaintiff would be decreed to pay the costs. Yet as that question, as to the jurisdiction, is yet to be decided, and, indeed, as the plaintiff may, as he has hitherto done, decline making any motion on the defendant's declaration, we can not foresee, that the decision may (297) not be against the plaintiff. Consequently, we think, he ought to have been required to give security, as demanded: which will be certified accordingly to the court of equity. The appellant is entitled to his costs in this Court.
PER CURIAM. DECREED ACCORDINGLY.