delivered tbe following opinion:
'A motion is made in tbis case by tbe defendant under oatb that tbe court grant an order requiring tbe plaintiff “to make a deposit or furnish security for all tbe costs that may accrue in tbe case,” because, as- therein alleged, “tbe plaintiff is . . . unable because of bis financial condition to respond to such costs as may be adjudged against him.” Tbe motion also alleged that tbe plaintiff’s inability was to respond for costs and attorneys’ fees; but tbis court has repeatedly held that attorneys’ fees cannot be collected, because of tbe limitations of §§ 823 and 824 of tbe Revised Statutes, Comp. Stat. 1913, §§ 1375, 1378, and tbe defendant has accordingly amended bis motion at tbe bearing so as to strike out tbe words “attorneys’ fees.” Tbe matter comes up, therefore, solely upon tbe question of costs.
*55There are two rules of this court on the subject of securing costs. Rule 15'requires that the plaintiff in any suit shall make certain deposits for costs and charges, the amount to be replenished whenever the deposit is exhausted. Rule 16 is the one now in question, and its wording is exactly that of the motion, so far as concerns this case. Rule 15 is enforced by the clerk, rule 16 by the defendant by means of a motion to the court.
Rule 16 calls for “proof” of certain facts, and there is before me no proof on either side, except the motion which is sworn to. The motion, however, although it uses the words of the rule, can hardly be considered as proof. It states conclusions, and not facts. What the court would need would be facts showing that the plaintiff is unable because of his financial condition to respond to costs, not the defendant’s opinion on that subject. If such proof were before me, I would have to grant the motion, regardless of whether there is in the clerk’s hands enough for present costs or not, unless the attachment bond makes a difference. But there is no such proof before me, and so, as the matter stands, I shall have to deny the motion. The rule, however, contemplates that the defendant may obtain such an order “at any time,” and therefore the motion is denied without prejudice to another application to the same effect at a later date accompanied by proper proof.
It is so ordered.