JUDGMENT

Laville J:

The facts and arguments sufficiently appear from the Judgment below.

In this summons the defendants apply that plaintiff should give security for costs in this suit in the sum of $1,500 - on the ground that the plaintiff is ordinarily resident out of the State.

The suit is by the widow and a son as executor and beneficiary against the creditor-administrator of her husband's estate in johore for breach of trust.

It is conceded by plaintiff that she resides out of the jurisdiction and is a woman of no substance and that she cannot find even $750 security but it is argued by her Counsel that the usual rule that a plaintiff who resides out of the jurisdiction should put up security for defendants' costs does not apply in this particular instance.

He bases his argument on the wording of s. 369 (i) of the Civil Procedure Code FMS which makes the order to put up security one for the discretion of the Court and quotes a written judgment by Poyser CJ, FMS in Raub Civil Suit No. 12 of 1938 * which has not yet been published in which the question was argued as to whether the discretion allowed by the Civil Procedure Code was an unfettered one or had been limited by the practice of the Courts.

In that suit it was argued for the defendants the Raub Australian Gold Mining Co. Ltd. that the general rule was that a plaintiff residing out of the jurisdiction with no immoveable property therein must give security for costs to defendant. (The FMS and Johore Civil Procedure Codes are one and the same enactment and what applies to one also applies to the other). The short point was that the word "may" had been converted by the practice of the Courts into the word "must". Counsel for defendants contended that in England though the Court had a discretion in practice this discretion was only exercised in one way, i.e., to make the order. Annual Practice 1939 p. 1438 was quoted where in relation to O. 65, r. 6 it is stated:

The ordinary ground on which security is granted is residence abroad and subject to exceptions the rule is inflexible ...... Where the plaintiff resides in Scotland or in Northern Ireland security for costs will not be required of him, for by the combined effect of the Judgments Extension Act 1868 and the Judicature Act 1873 s. 76 a judgment in any Division of the High Court was enforceable in Scotland or Ireland but now by the operation of the Government of Ireland Act 1920 Southern Ireland is within the rule which requires security.

Cases relied on in support of the above were In Re Pretoria Pietersburg Railway Co. [1904] 2 Ch 359 where Buckley J declared "It is well settled that, as a general rule, if a person resident abroad is .... a plaintiff .... and has not assets within the jurisdiction which can be reached, he may, except in special circumstances be ordered to give security." Brogden v. Crozat [1894] 2 QB 30 was also quoted in support of the general rule, though Lord Esher MR doubted its complete inflexibility.

Counsel for plaintiff a Mr. Coldham opposed an order for security on the ground that such order was wrong in law and secondly that the Court's discretion was an active one and not bound by anything but the circumstances of each case and that in this case the delay of the defendants in asking for the order and the general circumstances of the case favoured the plaintiff's contention. On the first ground Raeburn v. Andrews 9 QBC 118 was quoted where no order was made on the score that the reason for such an order was the residence of the plaintiff abroad out of reach of the process of the Courts, and that since that handicap had been overcome in regard to Scotland by the judgments Extension Act 1868 the reason for the rule had gone.

On the second ground reliance was placed on O. XXV Indian Civil Procedure Code which is similar to s. 369 of our Civil Procedure Code, and cases cited thereunder showing that the exercise of the Court's discretion as to making an order that a non-resident plai