Sykes v Sykes
| Jurisdiction | England & Wales |
| Year | 1865 |
| Date | 1865 |
| Court | Court of Common Pleas |
Practice - Costs, Security for - Plaintiff suing as Executor - Insolvent.
In an action by two executors, one of whom is out of the jurisdiction and the other insolvent, the defendant is not entitled to a stay of proceedings until they give security for costs.
ACTION by the plaintiffs, as executors and executrix of Ellen Sykes, against the sheriff of Yorkshire and one Love for seizing and selling goods belonging to the testatrix under an execution at the suit of Love upon a judgment recovered by him against W. H. Shaw, the husband of the executrix.
By the will of Ellen Sykes, which was not proved until after the seizure and sale, all her personal estate and effects were bequeathed to Albert Sykes and Hannah Shaw, in trust for the nephews and nieces of the testatrix.
Upon an application by the defendants for security for costs, on the ground that one of the plaintiffs (Albert Sykes) was residing out of the jurisdiction of the Court, and that another of the plaintiffs (W. H. Shaw) was a bankrupt, and that neither Shaw nor his wife had any visible means of paying the costs of the defendants should a verdict pass for them, Brett, J., made an order staying the proceedings until the plaintiffs should give such security.
Kemplay obtained a rule nisi to rescind this order.
C. Russell and Forbes shewed cause. The order was rightly made. Although the fact that one of two plaintiffs lives out of the jurisdiction and that the other is a bankrupt, will not entitle the defendant to ask for security for costs, – M'Connell v. JohnstonF1,- the additional fact that the plaintiffs sue, not in their own right, but for the benefit of others, will.
[MONTAGUE SMITH, J. Is there any authority for saying that a plaintiff who sues as executor, though he be insolvent, must give security for costs?
BYLES, J. An executor residing out of the jurisdiction has been compelled to give security for costs: Chevalier v. FinnisF2; Chamberlain v. Chamberlain.F3]
In Larssen v. Monmouthshire Railway and Canal CompanyF4, where an administrator sued under Lord Campbell's Act, 9 & 10 Vict. c. 93, for the benefit of the deceased's widow and children, Bramwell, B., says: “To entitle a defendant to ask security for costs, the plaintiff must be both suing on behalf of another person and insolvent.” In Smith v. SaundersF5, the plaintiff had executed a deed of inspectorship for the benefit of his creditors, without assignment; and, it appearing that he had no beneficial interest in the suit, the Court stayed the proceedings until security should be given for the costs. So, here, the plaintiffs are suing for the benefit of others. One being insolvent, and the other out of the jurisdiction of the Court, and neither having any interest in the subject-matter of the action, they must give security. A plaintiff suing as prochein amy for an infant has been ordered to give security: Lees v. Smith.F6
Kemplay, in support of the rule. There is no authority for holding that an executor, unless he resides out of the jurisdiction, can be called upon to give security for costs...
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