Papineau v. Belgarde

The defendant filed an affidavit in the court below, and entered a motion that plaintiff be ruled to give security for costs, because of his insolvency. The court entered a rule to show cause by a specified day, and on that day set aside the order. This action of the court is assigned for error.

The first section of the Cost Act of 1844 requires the suit to be dismissed in cases where it provides a bond shall be given if its requirements are not observed. The language is peremptory, and yet it has been held, under that section, the motion to dismiss must be made before a demurrer or plea in…