Looking to the time when the order to stay proceedings was made and served, and the other circumstances of the case, it is plain enough that the step was resorted to as a mode of gaining time, and not from an apprehension of loss, if security for costs was not given. Delay, and not the prevention of injury, was the obvious motive. The defendant must pay the costs of the hearing appointed for the 26th of July, and of this motion.
I also think the order to shew cause should be discharged. The defendant might have obtained his order in December, and he should have moved off at that time. It is not pretended he was then ignorant of the fact of the plaintiff’s non-residence, and no excuse for the delay until July is given. The law exacts diligence of a defendant who would assert a right of this nature. He cannot, without good cause shewn, be allowed to lie by for months until the morning of a circuit, or of a hearing before referees, and then tie up the plaintiff by an order. Such a proceeding is in bad faith, and is not to be upheld. (Grah. Pr. 507; Duncan v. Stint, 5 Barn. & Ald. 702; Kasten v. Flaw, 1 Moore & Payne, 30.) The statute, (2 R. S. 620.) is not imperative upon the court to grant an order for security for costs, under all circumstances, and where the application is resorted to for another and improper purpose it should never be granted.
The order to shew cause must be vacated, with costs to be paid by the defendant as has been stated.
Ordered accordingly.