BENNETT v. SHUTE, 2 Del. 197 (1837)

Superior Court of Delaware.
Spring Sessions, 1837.

Mr. Booth moved for an order to stay proceedings in this case until the plaintiff gave security for costs; on an affidavit setting forth that he did not reside in the state, and that the defendant had a just defence to the action.

Mr. Bayard objected to the granting the order, on the ground that the application for it was too late. The defendant has appeared and pleaded; gone to issue; the witnesses are summoned and the case stands for trial at the present term. The effect of the order would he to continue the case and accumulate costs. He might have applied for it at the last term.

The Court said, that the rule security for costs was always in the discretion of the court; and, although they would not lay down the rule that application for it must be made at the appearance term, yet they would not grant it to the prejudice or delay of the other party. This case now stands for trial; the plaintiff is not here to give the security; and if he were here, would require time to do so. The motion if granted, would therefore, necessarily continue the cause, and increase the expense.

So Mr. Booth took nothing by his motion.

J. A. Bayard, for plaintiff.

Booth, for defendant.