Shepherd v. Burt

¶1The judge said that he had considerable doubts whether the case was covered by the section, since the title of the plaintiff as a trustee was denied, and if the defendant prevailed there would be no estate or fund upon which the costs could be charged. He deemed it unnecessary, however, to decide that question, as he was clearly of opinion that whatever might have been the motives of the assignor, the facts disclosed by the affidavits were not such as could justify him in imputing bad faith to the plaintiff. The power of the court to require security, was purely discretionary, and ought not to be exercised unless the imputation of bad faith was rendered at least highly probable. Motion denied, with $5 costs. (Vide Darby v. Condit, 1 Duer, 549.)