¶1The Opinion of the Court was delivered by
¶2This suit was originally instituted in the name of Buckmaster for the exclusive benefit of Denham, on a bond made payable to the former, for the use of the latter. Failing to recover in the Court below, Denham prosecutes a writ of error to this Court in the name of Buckmaster. Buckmaster now files his affidavit, alleging that Denham. resides out of the State and is insolvent, and moves the Court to dismiss the writ of error unless Denham shall give security for costs. The application will be allowed. Denham has the right to prosecute in the name of Buckmaster, but he. is bound to indemnify and protect him against the payment of costs. A rule will be entered requiring Denham to show cause why he shall not give security for costs, and unless cause is shown, or security given, the writ of error will be dismissed.
¶3Motion allowed.
¶4At a subsequent day of the term, the beneficial plaintiff, in compliance with the foregoing order of Court, filed a bond for costs, which was objected to by Gillespie, for the defendants in error, who asked that the plaintiff might be required to show that the bond was a sufficient indemnity to Buckmaster. The point was taken under advisement.
¶5The following Opinion was delivered by
¶6At the instance of Buckmaster, the nominal plaintiff in this writ of error, a rule was granted on a former day of this term, requiring Denham, the beneficial plaintiff, to shew cause why he should not give security for costs. In answer to the rule, he now presents a bond for costs, which is objected to by Buckmaster. No proof has been introduced by either party as to the responsibility of the person executing it. Must the party offering the bond shew its sufficiency, or must the one objecting to it shew its insufficiency? The question is one of easy solution. Denham, having failed to show cause against the rule, is bound to give good security for costs. This is an affirmative act on his part. If the security tendered is objected to, it is then incumbent on him to satisfy the Court, by competent proof, that it is sufficient to indemnify Buckmaster against the payment of costs. He has knowledge of the pecuniary circumstances of his surety, and if they are adequate, he can readily produce the proof. The other party is not presumed to know anything respecting them, and may therefore require him to make the proof. The bond will be rejected and the writ of error dismissed, unless satisfactory proof is presented of the responsibility of the person signing it, or other security is given.
¶7Hule nisi.
¶8 Young, J. did not sit in this case.