The statute is express and imperative, that, in case of a non-resident plaintiff suing by warrant, the fact of non-residence shall be sworn to by the party applying for the warrant; and, also, that a non-resident plaintiff, suing by warrant, shall give security for the payment of any sum which may be adjudged against him, as a condition of his right of suing by warrant. (See act, s. 4., with the proviso, vol. 1. 388-9.)
The justice had no right to dispense with the oath, under pretence that he was satisfied of the fact without oath; (4 Johns. Rep. 228.;) and it is equally clear, that the written memorandum of Holly was not such security as the statute requires. It was a promise to pay the cost of a warrant, without specifying in what suit. The statute requires security, not merely for costs, but “ for any sum which may be adjudged against the plaintiff.”
Besides, the defendant .below was unfairly surprised upon the trial, by a very special claim, which the plaintiff did not disclose until the defendant had pleaded, and several witnesses had been examined; and which, if it had been stated in proper season, might have induced the defendant to ask for an adjournment,, or for a jury. The judgment ought to be reversed.
Judgment reversed.