#### Vance v. Bird and Others.

Argued Wednesday, February 1st, 1815.

1. Costs — Security for — When It May Be Given.* — Upon a rule requiring security for costs, if sufficient security be tendered, in court, at the first calling, after the expiration of the sixty days, it ought to be received, and the suit ought not to be dismissed.

2. Same — Same—When It May Be Required.* — Quaere, whether a person residing within the commonwealth at the time of commencing his suit, but removing to another state while it is pending, can be compelled to give security for costs on- the ground of his absence from this state?

3. Same — Same—Notice—Sufficiency.*—It seems that a notice, requiring security for costs, is sufficient if given to the plaintiff’s attorney at law.

See post, Cahill, Executor of Quin v. Pintony.

This was an action of trespass in the Superior Court for Bath County. The plaintiff, being a resident of that county when his suit was instituted, removed to Kentucky while it was pending; whereupon, at the instance of the defendant’s counsel, an order was made, “that this suit be dismissed at the next court, unless security for the payment of all such costs, and damages, as may be awarded the defendants, and also the fees which will become due in this suit to the officers of the court, be given, with the clerk thereof, within sixty days from the date” of said order; without serving the party, or her attorney, with any other notice ; except that the attorney at law of the plaintiff was actually in court when the motion and order was made, and was conusant thereof. At the next term after that order, the plaintiff, by her attorney, appeared in court, and offered to give sufficient security for the payment of all costs, &c.; to receiving which security, the counsel for the defendants objected ; ^alleging that the law was imperative ; and that after the sixty days had elapsed, security for the costs could not be received; in which objection the court supported them, and dismissed the suit. The plaintiff, by her counsel, excepted to that opinion, and appealed to the Court of Appeals.

Wirt, for the appellant,

made several points : — 1st, That the provision in the act of assembly, (Rev. Code, 1st vol. p. Ill, ch. 76, sect. 23,) applies only to suits commenced by persons then residing out of the commonwealth. 2d. That notice to the attorney at law was not sufficient; but it should have been given to the attorney in fact. (1) So, notice to take depositions must be given to the attorney in fact; and it has been so decided in this court. 3d. Under the equity of the act, security for the costs should have been received, although the sixty days had expired.

No counsel appeared for the appellees.

February 2d, 1815,

*

See monographic *note*on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.

The principal case was cited with approval in Dean v. Cannon, 37 W. Va. 125, 16 S. E. Rep. 445.

(1)

 Note. Judge Brooke observed that, according to the practice in the District Courts, notice to the attorney at law, that security for costs was required, was good. — Note in Original Edition.

the president pronounced the court’s opinion, that the Superior Court of Bath County erred in dismissing the plaintiff’s cause on the ground that the security for costs was not filed in the clerk’s office within sixty days after the rule made ; but that such security, having been tendered in court at the first calling, after the expiration of the said sixty days, ought to have been received.

Judgment reversed with costs, and the cause remanded to the said County Court, to be there re-instated on the docket, and further proceeded in according to law.