delivered the opinion of the court.
There was a previous suit between these same parties as to-the same subject-matter. The judgment recovered by plaintiff' in that proceeding in the lower court was reversed here on appeal. M. & C. R. R. Co. v. Orr, 43 Miss., 279.
To the present action the railroad company pleaded the six. years statute of limitations, to which the plaintiff replied as-follows:
‘ ‘ And the said plaintiff, as to the 3d plea of said defendant,, says that an action was duly commenced by said plaintiff against said defendant, for same cause, within the time allowed, and a. verdict for plaintiff; and the same was reversed by the supreme court of Mississippi; and the said cause was afterwards dismissed by the circuit court on failure of plaintiff to give security for costs, to wit, on third Monday of September, 1872, and this cause was brought in one year after the determination of' said original suit; and this he is ready to verify,” etc.
To this replication defendant demurred, which demurrer was by the court overruled. Was this action correct? The-replication was based on § 2163 of Revised Code, which provides in substance that a plaintiff may have one year within which to bring a new suit when the original one has been. *545avoided or abated “by any matter of form,” or where he has recovered a judgment which has been arrested, or “reversed on appeal.”
It is evident that the provision with reference to cases reversed on appeal must relate to reversals which operate either as final conclusions of the suit, or which declare principles that render a further prosecution of that particular action impossible or unavoidable.
If the reversal simply remanded the suit for further proceedings, there would be no occasion for the bringing of anew suit and no necessity for the allowance of further time therefor.
When the judgment obtained in the former litigation between these parties was reversed by this court (43 Miss., supra) the cause was remanded for a new trial. Thereafter, as appears from the replication, plaintiff failed to give security for costs when thereto required, in consequence of which the action was dismissed. The reversal, then, by this court had nothing to do with the discontinuance of the former proceeding, and it will be observed that the replication does not aver that the new suit was brought within twelve months of said reversal, but within twelve months of the subsequent dismissal by the circuit court. So much of § 2163, therefore, as relates to cases reversed on appeal or writ of error by this court, has no bearing on the case at bar.
Can a suit which has been dismissed for want of security for costs be said to have been “ abated, avoided, or defeated for any matter of form?” We think not. This expression relates to technical defects in the form of action, or pleadings, or proof, or to variances between the one and the other.
It follows that the court below erred in overruling defendant’s demurrer to plaintiff’s replication, and that the same should have been sustained. It was held in Ross v. Simms, 27 Miss., 359, that where a demurrer is sustained to a replication there should be judgment final, and not of respondeat ouster. By § 613 of Revised Code it is provided that where a demurrer is sustained to a plea there should be judgment of respondeat *546ouster. It does not extend in terms to a demurrer sustained to a replication, and, although there was a similar provision in Hutchinson’s Code, 875, § 66, it was held in Boss v. Simms, supra, that judgment final for defendant was the proper order where a demurrer to a replication is sustained. This court therefore reverses the judgment below, and, rendering such judgment as the court below should have rendered, sustains the demurrer of defendant to plaintiff’s replication, and gives judgment for defendant; that plaintiff takes nothing by his writ, and that defendant recover of plaintiff the costs in both courts. We will add that we held in the original suit, 43 Miss., supra, that the proof disclosed no liability upon defendant, and that the testimony in this record is not materially different.