Tyler v. Adm'r of Person, 5 N.C. 498, 1 Mur. 498 (1810)

July 1810 · Supreme Court of North Carolina
5 N.C. 498, 1 Mur. 498
Bartlet Tyler v. The adm'r of Thomas Person, dec'd

Bartlet Tyler v. The adm’r of Thomas Person, dec’d.

} From Warren j

Under the act of 1787, ch, 19, the Courts have the power to make rules for the Plaintiff to give further security from time to time, for the costs; and in case of a failure to comply with these rules, .to dismiss his suit.

And the Courts seemed to have had this power, before that act passed.,

This was a motion that the Plaintiff be laid under a rule to give other and further security for the prosecution of the suit, or that the suit be dismissed. The Plaintiff had given bond with security, for the prosecution of the suit, at the time the writ was sued out, agreeably to the directions of the act of 1787, ch. 19 -, but the security had removed out of the State since that time. The motion was opposed upon the grounds, that the Plaintiff having given security when he sued out his writ, had done all that the act of Assembly required of him, and that the Court could not order the suit to be dismissed except for some defect or irregularity in the proceedings. The motion was sent to this Court; and

HaIiI, Judge,

delivered the opinion of the Court;

We find that in many instances in the English Courts, the Judges have directed that security should be given for costs: as in the case of an ejectment brought on the demise of tin infant; in the case of the death of the lessor of the Plaintiff in that action, or where the lessor resided without the kingdom ,* so, also, where an action for the mesne profits was brought in the name of the nominal Plaintiff, who had recovered in an action of ejectment.* The Courts have done this without the 1 aid of any statute passed for that purpose. It is true, that in other cases they have refused to make such orders } as *499where the Plaintiff, a merchant, resided at Dunkirk,* also where the Plaintiff was a Swede.† But wliat is the reason assigned ? “ That such a rule would affect trade, in shutting up our Courts from foreigners, who could not, perhaps, find security in a foreign country.” That the Courts have the power to require such security, has not, been doubted; policy has sometimes forbidden the exer - cise of it.

The act of 1787", ch. 19, recites in its preamble, that “ Whereas transient persons and others having no property real or personal in this State, obtain writs and enter into litigious law-suits, where they have no allegations sufficient to support a suit, or property to disburse the charges thereof in case of failure, much to the injury of the good citizens thereof, for remedy,” &c. The enacting clause then directs, “ That every clerk, before issuing any writ, or other leading process, shall take sufficient security of the persdn so applying, conditioned that he will prosecute such suit, or in case of failure, pay to the Defendant all costs,” &c. Our Legislature and the English Courts have not been influenced by the same policy. Our Legislature have decided the questiou, and not left it to the Courts to decide. Independently, therefore, of any right which the Courts of this State might exercise in directing security to be given for the costs under particular circumstances, in case an act had not been passed upon the subject, the true spirit and meaning of the act is, not only that security be given, but if the security remove or become insolvent, further security may be required. Let the motion be allowed.