Ex Parte CAMP

Ex Parte CAMP. [MOTION EOR MANDAMOS TO COMPEL DISMISSAL OE CAUSE.] 1. Security for costs by non-resident. — In an action by a non-resident, commenced by original attachment, an acknowledgment of liability for costs, endorsed on tbe writ before or at tbe time it is delivered to tbe clerk to be signed and issued, in these words, “We acknowledge ourselves plaintiff’s security for costs in this case,” is a substantial compliance with tbe requisitions of section 2396 of tbe Code. Application for a mandamus to tbe circuit court of "Wilcox, Hon. Nat. Cook presiding, to compel tbe dismissal of a suit therein pending, wherein Chamberlain, Miller & Co. were plaintiffs, and Nathan E. Camp, the petitioner, was defendant. The ground of the application was, that the circuit court improperly overruled the petitioner’s motion to dismiss the suit, “ because no security for the costs was given or lodged with the clerk before tbe commencement of the suit, the plaintiffs being non-residents.” The record submitted with the application shows that the action was commenced by original attachment, and it appears from the bill of exceptions that, on tbe bearing of tbe motion to dismiss the suit, the following facts were proved : ¡í The defendant proved that, before and at the time the said attachment was sued out, the plaintiffs were non-residents of this State. It was proved, also, that said attachment was filled out' and made complete in all its parts,with the exception of the clerk’s signature thereto, before tbe same was taken to tbe clerk to be signed and Issued by him, by tbe plaintiffs’ attorneys; that before said attachment was taken to tbe clerk to be signed and issued by him, the following words were written immediately under it, and on the same half-sheet of paper, by the plaintiffs’ attorneys, to-wit: ‘We acknowledge ourselves plaintiffs’ security for costs in this case, July 1, 1857,’ Which was signed by said attorneys; that when said attachment was thus taken to the clerk, he signed and issued the same; that nothing was said at the time about security for the costs, and that no other security for the costs than the above was given or offered. But the clerk testified, that the security was given, and that he considered it good. This being all the evidence offered on the-motion to dismiss the suit, the court overruled the said-motion ; to which the defendant excepted.” Alex. White, with Thos. J. Judge, for the motion. D. W. Baine, with Jno. T. Morgan, contra. [MAJORITY — R. W. WALKER, J.] R. W. WALKER, J. Where security for the costs of the suit is endorsed upon the attachment, before or at the time the attachment is delivered to the-clerk to be signed and issued by him, this is, in our opinion, a substantial compliance with, section 2396 of the Code. The motion is denied, at the cost of the petitioners