90 F. 772 | U.S. Circuit Court for the District of Southern New York | 1898
Congress has provided that, in certain actions which are brought under federal statutes, no security for costs-shall be given; but it was not so disregardful of the rights of the individual citizen as to deprive him of his right to costs in the event of his success. The section of the Revised Statutes reads as follows:
“Sec. 1001. Whenever * * * process in the law * * * issues from ¡„ circuit court * * * by direction of any department of the government no bond, obligation or security shall be required * * * to answer * * * in*773 costs. In ease of an adverse decision, such costs as by law are taxable against * * * the party acting by direction as aforesaid, shall be paid out of the contingent fund of the department under whose directions the proceedings were instituted.”
M process in this case is taken out by the receiver of the national Rank, plaintiff herein, “by direction of any department of the govern-the case will be within the express language of this section, ?.nt! no security for costs should be required, and, in the event, of defendant's success, he may be paid Ms costs out: of the contingent fund of hie treasury department. In one sense, the receiver, who, in the nage of the supreme court in Kennedy v. Gibson, 8 Wall. 498, h- -i he instrument of the cons ¡droller of the currency,” may be said to sic; under the comptroller’s direction in bringing suits against alleged delinquent stockholders; but it would seem as If congress had in mind une more specific direction. To claims by successful defendants in such suits to be paid out of its contingent fund U is altogether probable i hat the treasury department would reply that it had not specifically directed such suits to be brought, and that the charge was not properly against congressional appropriations for the expenses of the de-pariinenf. but against the funds of the defunct bank, which the receiver might hold for distribution among its creditors. Inasmuch as congress has so carefully provided for the one case, and has failed to provide for the other, it must be assumed that it did not intend to re-Jieve receiving of national banks from the ordinary obligations of nonresident litigants when they do not act under such direction as will make the treasury department contingent fund liable for costs. It is conceded that the right, of the court to require security for costs t'rouL receiver? is discretionary, but there can surely be no doubt as io how such discretion should be exercised. It would be most unjust if a defendant who succeeds in a suit brought here by the receiver could recover Ms costs only by going to Colorado, and himself suing there upon the judgment in his favor.
Unless, therefore, within 20 days, plaintiff shall file a certificate of the comptroller of the currency to the effect that process in this action is taken out by express direction of the treasury department, he will be required to file security (or deposit) for costs to the amount of $100 in each case. Defendant may have 10 days after notification of the filing of such certificate or security in which to answer.
