Watson v. Glassie

Fowler, J., delivered the opinion of the Court. Henry H. Glassie, trustee in bankruptcy, filed a bill in the Circuit Court for Prince George’s County, which was duly answered by the defendants. There were subsequent proceedings in the cause, but in order to dispose of the question presented by this appeal it is only necessary to say that after the bill was answered, the defendants on the 13th December, 1901, filed amotion for rule security for costs and on the 17th of the same month a nisi order was passed directing the plaintiff to give the usual undertaking for security for costs with security to be approved by the Clerk of the Court within twenty days after a service of a copy of said order, or in default directing the bill to be dismissed. On the same day that this order was passed and filed the plaintiff moved the Court to vacate and set it aside : 1.

Because the defendant had waived the privilege to require security for costs by first putting in an answer; 2. Because the residence of the complainant, being set out in the bill, the defendant did not, as he should have done,: apply for security for costs before answering or taking another-step in the cause. This motion prevailed, and on the 7th January, 1902, the former order requiring the plaintiff to show cause why he should not give security for costs was rescinded on the ground that the non-residence of the plaintiff having been set forth in the bill the defendant had waived his right to have the rule laid after filing his answer. From this order the defendant has appealed.

The action of the learned Court below was evidently based upon the well-established equity practice before the passage ⁶⁶⁰ of the-Act of 1844, ch. 219, which is now codified as sec. 152, Art. 16. Under the old practice if the defendant having knowledge of the plaintiff’s non-residence answered, or indeed if he took any proceeding whatever recognizing the plaintiff’s right to sue, the right to have the rule laid was held to have been waived. Mayer v. Tyson, 1 Bl. 559 , 565; Hatton v. Weems, 12 G. & J. 105 ; but the practice now, in this respect, is governed by the provision of the Code just referred to, viz., sec.