In the view we take of this case, we have-not. thought it necessary to consider at all the propriety or impropriety of the-action of the clerk in giving permission to th-e plaintiff to sue without giving a bond for the prosecution of his action ; for admitting that to-have been an error in him, we still think that the action of His Honor in so-peremptorily dismissing the plaintiff’s action is no-t.in keeping with the spirit of the adjudications of this court.
Under the statute, as contained in the Revised Code, ch. 31, §-40, it was the duty of the clerks to- take from plaintiffs bonds with proper security for- the prosecution of their actions, and it was expressly provided that if “any writ ®-r other leading process shall be issued without security, the samo shall be dismissed by the co-u-rt ©n motion of the defendant."
Under that stringent law, (far exceeding any that can be found in the O. C. R) this court held, in the case of Brittain v. Howell, 2 Dev. & Bat., 107, that where the plaintiff had< sued out his writ without giving the required bond, but the defendant had put in an answer,, and several terms had been-allowed to pass without any motion to dismi-sson-thatgroundy it was not proper in the court to make a preemptory order to dismiss the plaintiff’s action for the want of a bond; andi *601there is a clear intimation that under such circumstances the defendant might be held to have waived it.
Now, it cannot be maintained, we presume, that the plaintiff, by reason of his having made an effort to procure the leave of the court to sue in forma pauperis, can be in a worse plight than if he had issued his summons without, even, seeming to comply with the requirements of the law. If no more, he certainly must be entitled to as much indulgence as was shown the plaintiff, in the ease just cited, wlm made no show of giving any security whatever, or of any excuse for his failure to do so.
After the defendant had filed an answer and had allowed the cause to remain upon the docket for nearly three years without any objection whatever as to the insufficiency of the affidavit upon which the order was procured, or the lack of proof to support it, we would be much inclined to hold that he had waived all exception thereto; or if not so, then,that most clearly the plaintiff was entitled to have notice given him of the purpose to move for the dismissal of his action, to the end that he might, either amend his affidavit or supply the requisite proof as to his action, being a meritorious one; from all opportunity to do which he was cut off by the peremptory order made, (as we gather from the record) just, as he supposed himself, to be on the eve of a trial of his cause upon its merits.
This court therefore holds that it was an error in the court below to have so dismissed the plaintiff’s action; and we direct that this opinion be certified to said court that the action may be proceeded with upon such terms in regard to security for its prosecution as to the court may seem just and right.
Error. Reversed.