Both of the objections are well taken. The plaintiff, who sues ,® autre droit, is not responsible for costs, if he fails, except under special circumstances ; and he ought not to be obliged to enter into personal security, in the first instance. The defendant has, moreover, waived his right to such security by his plea. The rule is, that if the non-residence of the plaintiff appears, on the bill, the defendant waives his title to security for costs, if he takes any step in the cause, or even prays time to answer. (2 Vesey, 24. 10 Vesey, jun. 287.) In Long v. Tardy, (1 Johns. Ch. Rep. 202.) a demurrer by the defendant was held to be a waiver.
Motion denied.