Definition
A procedural mechanism by which a defendant compels a plaintiff to deposit funds or furnish a bond guaranteeing payment of costs if the plaintiff fails or the defendant is awarded costs at judgment. The device exists to protect defendants from the practical impossibility of collecting a costs award against a plaintiff who has no assets or presence within the court's jurisdiction.
Security for costs is not a merits defense. It does not attack the plaintiff's claim. It is purely a protective, procedural safeguard that conditions the plaintiff's right to proceed on the provision of financial assurance.
The classic triggering circumstance is a plaintiff residing outside the court's jurisdiction — historically, a foreign national or a plaintiff domiciled in another state or country who could not easily be made to pay costs after an adverse judgment. Modern practice has expanded the triggers in many jurisdictions to include corporate insolvency, history of litigation abuse, and impecuniosity.
Until the required security is provided, the plaintiff's action is stayed. Failure to furnish security after a valid order may result in dismissal.
Common Confusion
Security for costs is sometimes confused with the general concept of security in contract and surety law. Bouvier's entry for "security" covers both meanings — the surety sense (a person or instrument guaranteeing another's performance) and the procedural sense (a deposit or bond to ensure payment of litigation costs). These are distinct concepts. The surety sense of "security" is the older and broader usage; security for costs is a specific procedural application that should not be conflated with suretyship doctrine generally.
Security for costs is also occasionally confused with supersedeas bonds or appeal bonds. Those instruments secure the judgment debtor's obligations pending appeal. Security for costs secures a potential future costs award against a plaintiff at the outset of litigation, before any judgment.
Core Elements
The following elements typically govern whether a court will order security for costs and on what terms:
Standing to demand. The right belongs to the defendant, not the court acting sua sponte in most systems. The defendant must apply; the right is not automatic.
Timeliness. The demand must be made in proper time. Bouvier is explicit on this: a defendant who fails to claim the right, or proceeds in the litigation without asserting it, waives the right. Waiver is typically implied from participation, not express.
Qualifying ground. A recognized basis must exist — historically, plaintiff's non-residence within the jurisdiction. Modern courts recognize additional grounds including corporate insolvency and litigation history.
Form of security. Security may take the form of a cash deposit, a surety bond, or a recognizance. The amount is set by the court and calibrated to anticipated costs, not to the merits of the claim.
Effect of non-compliance. Plaintiff's failure to provide ordered security results in a stay of proceedings and, if the default continues, dismissal of the action.
Why It Matters in Research
The term carries different weight depending on the era and jurisdiction of the source you are reading. In English common law practice — which is the foundation of the historical dictionary entries here — security for costs was a well-developed procedural right rooted in the rules of King's Bench and Common Pleas. Tidd's Practice (cited in both Black's and Burrill's) and Archbold's Practice are the organizing treatises for this doctrine in the 18th and 19th century English context. American courts adopted the doctrine unevenly, and federal practice today is more restrictive than many state systems.
Researchers working in federal courts should be aware that the Federal Rules of Civil Procedure do not contain a general provision authorizing security for costs. Federal courts derive this authority from inherent power and, in some circumstances, specific statutes. This makes the doctrine spottier in federal practice than its robust treatment in the historical dictionaries would suggest.
In state courts, security for costs provisions appear in state procedural codes, and the grounds, amounts, and procedures vary significantly. Some states have largely abolished the mechanism for individual plaintiffs; others retain it vigorously for foreign corporations or out-of-state plaintiffs.
Researchers should also note the intersection with in forma pauperis practice: courts generally will not order security for costs against an indigent plaintiff who has been granted IFP status, since the order would operate as a de facto dismissal.
The waiver trap flagged by Bouvier deserves attention in historical source research. Cases turning on whether a defendant preserved the right to demand security — and when waiver was implied by litigation conduct — generated substantial 19th century case law that can be difficult to locate without knowing the doctrine's procedural mechanics.
Historical Dictionary Support
Black's and Burrill's are nearly identical on this term, both drawing from Tidd's Practice for the core definition: security that a defendant may require of a non-resident plaintiff to ensure payment of any costs awarded. This reflects the solidified English common law rule and its American reception. Neither entry addresses the question of waiver, which Bouvier handles more thoroughly.
Bouvier's treatment is the most practically useful of the three. It identifies the demand requirement, the timeliness rule, and the implied waiver doctrine — each of which is essential to understanding how the right operated in practice. Bouvier also notes the stay of proceedings as the consequence of non-compliance, which Black's and Burrill's omit.
What all three sources miss is the modern expansion of grounds beyond non-residence. The historical treatment is tied to the foreign plaintiff scenario, and researchers should not assume that the historical doctrine maps cleanly onto modern procedural rules, which in many jurisdictions have both broadened the grounds (corporate insolvency, abuse of process history) and narrowed the remedy (heightened constitutional scrutiny of barriers to court access).
The Bouvier entry for "security" generally conflates the surety and procedural meanings, which can mislead researchers who encounter it without the "In Practice" subheading as a guide.
Jurisdictional Note
In English and Commonwealth jurisdictions (UK, Australia, Canada), security for costs remains a robust and frequently litigated procedural device with detailed codified rules. American federal practice is comparatively sparse, relying on inherent powers rather than a specific rule. State practice varies widely: researchers moving between state and federal sources, or between American and Commonwealth sources, should not assume procedural equivalence.
Encyclopedia Cross-Reference
civpro_142: Costs and Taxation of Costs — Rule 54(d) and 28 USC 1920 (The Law Mind Civil Procedure & Evidence Encyclopedia)