The counsel for the Defendant in error insisted,
1st. That a non-resident Plaintiff who commences “a suit,” must file a bond in a penalty of $250, conditioned “to pay on demand all costs that may be awarded to the Defendant in such suit, (2d R S. 620, sec. 1 & 3,) and the issuing of a writ of error is a commencement of a new “suit.” (2d Saund. R., 101, E.; 7 Term R., 337-8; J. R., 289.)
2d. The filing of a bond for $150 (as was done on the issuing of the writ of error in this cause,) 2d R. S., 596, sec. 27, sub. 2, and sec. 28, sub. 3, conditioned to pay costs and damages if the party shall fail to prosecute his writ, &c., is no compliance with the statute requiring non-residents to file security for costs; because the reasons for requiring the bond to be filed are different, as are the statutes. This appears from the statutes themselves, and the difference in the penalties, amounts and conditions of the respective bonds.
3d. Under the facts disclosed in the affidavit of the Defendant in error, the attorney of the Plaintiff in error is liable to pay the interlocutory costs therein mentioned, under pain of attachment, (Gillespie vs. Stanless, 1 Howard Sp. T. Rep. 101,) and no demand on the non-resident Plaintiff was necessary as a preliminary to the Defendant’s motion. (Talmage vs. G. Wallis, id. 100.)
4th. An order may and should be made under the general and particular clauses of relief asked for by the Defendant’s notice, requiring the Plaintiff’s attorney to pay the interlocutory costs mentioned in the Defendant’s affidavit, and requiring the Plaintiff in error to file the usual bond for security for costs, and to pay the costs of this motion.
Plaintiff’s counsel insisted, that the Plaintiff in error had conformed to the statute on bringing his writ of error, and had given the bond for security for costs which the statute in such cases specifies.
Beardsley, JusticeHeld, that it was not necessary to file security for costs; the bond required by statute on prosecuting the writ of error having been given, it was all the statute required. But ordered the proceedings, on the part of the Plaintiff in error, to be stayed until the payment of the $7 costs heretofore ordered; costs of this motion to abide event of the cause.