PALMER V. HICKS. VOL. 17 *PALMER, usE &c. [*505 V. HICKS. The plaintiff, for whose use a suit is brought, is liable under the statute, for the costs; and, if a non-resident, is required to file a bond for costs, before the institution of the suit. Where a non-resident plaintiff brings a suit without filing bond for costs, and the defendant pleads that fact in abatement, but cannot prove the non-residence of the plaintiff, he is entitled to discovery from the plaintiff: Appeal from Philips Circuit Court. ON. GEO. W. BEAZLEY, Cir-H cuit Judge. Palmer and Watkins & Gallagher, for appellant. ENGLISH, C. J. This was an action of debt brought by John C. Palmer, for the use of John B. Woodfin, against Lucretia M. Hicks, in the Phil-lips circuit court. The action was founded on a wliting obligatory, payable to Palmer, for the use of Woodfin. The defendant filed tiplea in abatement, alleging that Woodfin, for whose' use the suit was brought, was a nonresident of the State, at the time the suit was commenced, and that no bond for costs was filed. The plaintiff took issue with the plea. The defendant filed a petition for discovery, alleging the non-residence of Woodfin, but that she knew of no witness by whom she could prove the fact; and interrogating both Woldfin and Painter in regard thereto. The plaintiff interposed a general de-murrer to the petition, &c. The court overruled the demurrer,and the plaint-
JAN. TERM, 1856. PALMER v. HICKS. iff rested thereon. Thereupon, the pellaneare not in point. These author-court made an order, that both Palmer ities show, that as a general rule, a and Woodfin be required to answer the plaintiff in equity is entitled to a dis-5061 interrogatories, (Sze., con*tained covery from the defendant of the mat-in the petition, by the next term, or ters charged in the bill, provided they they would be taken as confessed; and are necessary and proper to sustain the cause was continued. facts material to the merits of the At the next tern), no answer having plaintiff 's case, and to enable him to been filed, the allegations, &c. contain-obtain a decree. And so the same rule ed in the petition were taken as con-is stated by Story, in his Equity Plead-fessed; the issue to the plea iu abate-ing, sec. 845. ment submitted to the court, and find-*But the rule in reference to [*507 ing and judgment for the defendant. obtaining a discovery in chancery, in The plaintiff appealed. aid of a detense at law, is generally The appellant insists that a court of stated in the books as we have given it equity would not compel a discovery to above. sustain a plea in abatement; and, there-It is true, that the law court does not fore, the defendant was not entitled to favor pleas in abatement, as they are the discovery sought bv her petition, not treated as pleas to the merits ; and under the statute. perhaps, they are no more favorably re-The statute provides, that: "Either garded in a court of equity. But, party to a suit in any court of record though the failure of a non-resident to shall be entitled to a discovery from the file a bond for costs before bringing other party, of all matters material to suit in our courts, is treated as a matter the issue in such suit, in all cases in abatement, we are not warranted in where the same party would, by rules saying that the defense is not merito-of equity, be entitled to discovery in a rious. If there is any merit in the court of equity in aid of such suit." statute, there is merit in the defense. Digest, chap. 126, sec. 93,p. 810. The statute requires a bond for costs As a general rule, the defendant in to be filed in all suits in law or equity, any civil action may file a bill of dis-when the plaintifF, or person for wlwse covery, to aid him in the defense of use the action is commenced, is a non-such action, where the discovery resident of the State. Digest, chap. 40, sought is shown to be material. sec. 1 ; State, use tkc. v. Lawson, 5 Ark. Story's Eq. Pl., sec. 324, a. 319, Rep. 665. The party for whose use the 845; Lane v. Stebbins, 9 Paige 692; suit is brought, is liable for the costs. March v. Davison, Id. 580; Many v. Same chapter Digest, sec, 27. Beekman Iron Company, Id. 188; The filing of the bond for costs is a Adams' Equity, 1 to 22. And the de-prerequisite to the right of the non-res-fense at law cannot be estOlished by idtnt to sue in our courts ; and if he the testimony of a witness, or without chooses to commence a suit without the aid of the discovery sought. Leg-filing such bond, and thereby to disre-gett v. Postly, 2 Paige 549; 1 American gard the law, we know of no good Chancery . Digest, p. 293, et seq. reason why he should not be compelled We have not been able to find any to discover his non-residence, where case where it was decided that a de-the defendant is unable to prove it by fendant in a suit at law was ;not en-a witness, as alleged in this case. titled to a discovery in support of a No other objection is made to the plea in abatement. The author-petition for discovery. It seems to be ities cited by the counsel for ap-good in form, and sought the discovery
VOL. 17 of a matter material to the issue made upon the plea. We think the court did not err in overruling the demurrer to the petition. The question whether Palmer, to whom the bond is made payable, for the use ot Woodfin, and in whose name the suit was brought, was also liable for costs, does not legitimately arise in the case. The judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.