139 Mich. 463 | Mich. | 1905
(after stating the facts). The relator insists that he cannot be compelled to receive property of any kind or description, and hold it as a bailee, in lieu of a bond. In other words, he insists that a bond is the only security for costs contemplated by the statute.
The county clerk is a constitutional officer (Const. § 12, art. 6), and is by that section made the clerk of the circuit court of such county. Section 221, 1 Comp. Laws, requires him to attend every term of court; gives him the care of all the records, seals, books, and papers pertaining to the office of the clerk of such court, and filed or deposited therein. Neither the Constitution nor the statute prescribes his duties. He is therefore subject to all the legitimate orders of the court of which he is clerk. There are several provisions of the statute in regard to security for costs in suits — sections 713, 9990-9993, 10353, 10958, 11282, 11285, 11287, 11288. Some of these require the writs and declarations in certain cases to be indorsed by some one as security for costs; others require a bond; while still others simply require-security for costs without specifying in what manner it shall be given.
The section here involved is 9992, reading as follows:
“The court in which any civil action shall be pending, may, in all cases, when it shall appear reasonable and proper, require the plaintiff to give sufficient security for all such costs as may be awarded against him therein.”
The statute in question does not provide that the security shall be a bond. The form of the security therefore rests in the sound discretion of the court. Skinner v. Lucas, 68 Mich. 424, 434; Gifford v. Roberts, 125 Mich. 408. Under a similar provision in New York it was held that “the nature of the security is not designated, and there can be no good reason why the deposit of money should not be deemed competent security.” Wheelock v.
The statute in many cases provides for the deposit of money with the clerk of the court, who is also register in chancery. 1 Comp. Laws, §§ 425, 504. The deposit of money or a certificate of deposit imposes no hardship upon the clerk, and gives him no more trouble than does the care and keeping of a bond. The relator in this case is put to no liability as bailee. Compliance with the order of the court would be a complete defense to any claim made against him. If the legislature had intended that a bond should be the only security, it would evidently have so provided, as it has in other provisions of the law. In’ civil cases the sole object of the security is to indem- . nify the defendant against costs. A stranger or one without property might be unable to give a bond, but could make a deposit of money, or, as in this case, deposit a certificate as security. We think it manifest that the purpose of the law was to leave the matter entirely in the discretion of the court. It by no means follows, as counsel for the relator suggest, that a clerk could be compelled to accept diamonds or horses or other chattels as security, and be compelled to act as bailee.
Where the plaintiff was ordered to give security for costs, he deposited with the clerk $50, and it was held to be a compliance with the order. Fenet v. Wilson, 3 Hill (S. C.), 340. There are good reasons why the deposit of money, or, as in this case, a certificate, is better than a bond. It saves the trouble of a suit, and places under the control of the court the money with which to order the costs to be paid.
The writ is denied.
