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 *Page 141 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.
(194)