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Spalding v. Bainbridge

Supreme Court of Rhode Island
Jan 17, 1879
12 R.I. 244 (R.I. 1879)

Summary

In Spalding the defendant moved that the plaintiff be required to give surety for costs under Gen. Stat. R.I. ch. 195, § 26 (1872).

Summary of this case from Jones v. Aciz

Opinion

January 17, 1879.

Gen. Stat. R.I. cap. 195, § 26, provides that "the court . . . . shall at any time before final judgment, . . . . upon motion of any defendant and for cause shown, require the plaintiff to procure . . . . a sufficient surety" for costs. Under this law a defendant asked that a plaintiff, too poor to give security, might be required to furnish it. Held, that an order to give security would be useless unless the court was prepared to dismiss the case for non-compliance. Held, further, that such a dismissal would violate Art. 1, § 5, of the Constitution of R.I. Held, further, that the court in such a case would require evidence of a probable cause of action before allowing the plaintiff to proceed.

ON motion for surety for costs.

Z.O. Slocum, for plaintiff.

B.N. S.S. Lapham, for defendant.


The defendant moves that the plaintiff be required to give surety for costs. It is conceded that the plaintiff is too poor to procure a surety. The defendant, nevertheless, insists that under Gen. Stat. R.I. cap. 195, § 26, he is entitled to an order in accordance with his motion. We do not think that the statute, though peremptory in its terms, requires us to make the order in a case like the present. Such an order would be of no benefit to the defendant unless we should dismiss the suit for non-compliance with it. This the statute, Gen. Stat. R.I. cap. 195, § 27, does not compel us to do, but plainly leaves in our discretion. We certainly should not dismiss the suit, if it clearly appeared that the non-compliance was because of the plaintiff's inability on account of poverty. To dismiss the suit in such a case would practically amount to a denial of justice and would be inconsistent with the Constitution. Constitution of R.I. Art. 1, § 5.

We think, however, that before the defendant is put to the expense of making his defence, the plaintiff should be required to satisfy us, by affidavit or otherwise, that he has probable cause of action.

Motion dismissed.


Summaries of

Spalding v. Bainbridge

Supreme Court of Rhode Island
Jan 17, 1879
12 R.I. 244 (R.I. 1879)

In Spalding the defendant moved that the plaintiff be required to give surety for costs under Gen. Stat. R.I. ch. 195, § 26 (1872).

Summary of this case from Jones v. Aciz

In Spalding v. Bainbridge, 12 R.I. 244, construing Gen. Stat. cap. 195, § 26, the language was that upon cause shown the court shall require surety.

Summary of this case from Rosenfeld v. Swarts

In Spalding v. Bainbridge, 12 R.I. 244, this court held that the suit should not be dismissed for non-compliance with the order for surety for costs, if it clearly appeared that the non-compliance was because of the plaintiff's inability on account of poverty; that to dismiss the suit in such a case would practically amount to a denial of justice and would be inconsistent with Art. 1, § 5 of the constitution.

Summary of this case from Lewis v. Smith
Case details for

Spalding v. Bainbridge

Case Details

Full title:GILMAN SPALDING vs. WILLIAM F. BAINBRIDGE

Court:Supreme Court of Rhode Island

Date published: Jan 17, 1879

Citations

12 R.I. 244 (R.I. 1879)

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Many of the cases in which this court has addressed art. I, sec. 5, of our constitution have dealt solely…

Rosenfeld v. Swarts

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