delivered the opinion of the court.
The counsel for the defendant obtained a rule in tbis court on the judge of the Court of Probates, for the parish and city of New-Orleans, to show cause why a writ of mandamus should not issue commanding him to allow an appeal from a judgment discharging a rule taken on the plaintiff; to show cause why a judgment by default should not be set aside and *204¡six months, allowed him, the defendant, to prepare and file his answer in. .
The defendant will not be allowed an appeal from an interlocutory order or decree, in order to avoid an appeal from the final judgment which may be rendered against him, because he may not be able to give security and procure a suspensive appeal. Security must be given, in every case, according to law, in order to obtain a suspensive appeal, although it be a constitutional right.The judge of probates appeared and showed for cause why the mandamus should not issue: 1st. That the appeal prayed for, is from an interlocutory order, which may indeed be productive of delay, but cannot occasion any other injury not susceptible of being redressed or relieved against, by an appeal from the final judgment, which might intervene. The order complained of, was one refusing to the defendant a delay of six months, in order to send to France for certain papers, which are alleged and deemed necessary, before filing an answer, to establish the defence of the case.
The judge stated the motives of his refusal, which it is now unnecssary to examine. If the final judgment be against the defendant, and he sees fit to appeal therefrom, there cannot be a doubt of his right to obtain relief, if he can show that the judge erred in refusing him the delay he requested.
It has, however, been urged by the defendant’s counsel in the argument of this case, that the defendant may possibly be precluded from relief in this court in case of a final judgment being given against him, by his inability to procure the necessary security to obtain a suspensive appeal.
This argument proves too much. For it was adhiitted an appeal might be claimed from every interlocutory decree.
The legislature has presumed that every one, who has a claim to be relieved on appeal to this court, is able to give security. This is required by law; and no provision has been made for a contrary case. Nothing, therefore, enables us to remove the obstacle, which the law has created in this respect, to the exercise of a constitutional right.
The''rule is therefore discharged with costs.