Opinion
(June Term, 1847.)
1. Where the plaintiff, at the commencement of a suit, has given surety for its prosecution, it is not competent afterwards for the court, on his petition, to allow him to prosecute in forma pauperis, though the defendant objected to the surety and obtained a rule that further surety should be given or the suit should be dismissed.
2. The court ought either to have dismissed the suit, according to the rule, or to have made an order on the plaintiff's petition permitting him to carry on his action without giving further security.
3. The court could not discharge the first sureties from their responsibilities without the consent of the defendant.
APPEAL from SURRY Spring Term, 1847; Settle, J.
The plaintiff when he commenced his action gave bond for the prosecution of the suit, as required by law. The writ was returned to Spring Term, 1846, at which time the defendant appeared, and by his (192) attorney entered his plea and the cause was put to issue. At the succeeding term of the court a rule was taken upon the plaintiff to show cause why he should not give other and better security or justify the present. At the following term the plaintiff filed his petition praying for leave to prosecute his suit in forma pauperis. Satisfactory evidence was produced showing to the court that the plaintiff was unable to give other security, and that he was, in the estimation of the law, a pauper. The court made the order as prayed for.
Morehead for plaintiff.
Boyden for defendant.
In this order we are of opinion there is error. The courts of justice in this State have long exercised the power of requiring other and better security from plaintiffs in cases where justice demands it, as when the sureties to the bond, already given, have moved away or have become insolvent. The act requiring security to be given before the writ issues is silent on the subject; but its spirit and meaning require it, and it is in accordance with the English practice on the subject of costs. The courts, however, in exercising this power ought and will do so, with a proper attention to the calls of justice between the parties, and will, when the plaintiff has once complied with the law in giving security, dismiss or refuse to dismiss his case, as a sound discretion may direct. When, therefore, in this case, the plaintiff failed to comply with the rule of giving better security, the court was not bound to dismiss his action, but might, upon proper reasons shown, permit him to prosecute it without further security. The motion of the defendant, upon the failure of the plaintiff, was to dismiss the suit. This the court was not, we repeat, bound to do; but, in retaining the (193) cause, was not at liberty to take from the defendant the security against accruing costs which the bond already given afforded him. By that bond the sureties were bound, should the plaintiff fail to prosecute his suit with effect, to pay the defendant all his legal costs. It might be, and no doubt in this case was, a very insufficient protection. Still it was something. The sureties, though unable to pay anything, might, in a variety of ways, be placed in a situation to meet its responsibilities. The defendant had a legal interest in it, of which the court had no right, without his consent, to deprive him. By the order appealed from the sureties of the plaintiff were discharged, as far as the order could have that effect, from any liability to costs hereafter incurred, and as to them the defendant was without protection. The court ought either to have dismissed the suit according to the rule previously obtained upon the plaintiff or to have made an order on the plaintiff's petition permitting him to carry on his action without giving further security. This would be within the equity of the act.
The interlocutory order is erroneous, and is therefore
PER CURIAM. Reversed.
Cited: Biggerstaff v. Cox, 46 N.C. 536; Dale v. Presnell, 119 N.C. 491.
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