
    SECURITY FOR COSTS.
    LOommon Fleas Court of Montgomery County.]
    John Ware's Administrator v. The City of Dayton.
    
      Section 4340(1) and 4340(2) Construed — Plaintiff Administrator now a Non-Resident.
    
    Section 4340(2) does not repeal Section 4340(1) either expressly or by implication, and is not inconsistent with it, but provides an exception not noted in the earlier section; and the exceptions contained in both sections are in full force.
    Heard on motion to require plaintiff to give security for costs.
   Dustin, J.

The plaintiff was appointed and qualified and gave bond as administrator in this county, although now residing in another county. Section 5340(2) of the Revised Statutes was passed in April, 1889, and provides that a non-resident shall give security for costs; and the only exception is that' the provisions of the section shall not apply to re-enlisted veteran volunteers who are seeking to avail themselves of the provisions of an act to authorize or require the payment of bounties to veteran volunteers, passed April 16, 1867, and amended April 16, 1880. This section does not expressly repeal the old section, which has been upon the statute books for a quarter of a century or more, and amended in various forms, the last amendment being April 16, 1888, the year before the section in question was passed, which has all along provided that the sections shall not be so construed as to require administrators or executors to give security for costs in any suit commenced or prosecuted by them in the county in which they have been appointed or qualified, and in which they have given bond as such executors or administrators. The amended part of Section 5340(1) is the same as Section 5340(2), with the exception that the clause requiring a corporation when insolvent' to give security, for costs is omitted, and some other immaterial words.

It is claimed on the part of plaintiff in this case that 5340(2), although passed a year later than the last amendment t'o the old law on the subject, now known as 5340 (1), does not repeal it expressly nor by implication and is not inconsistent with it, and that the policy of the law is against' the repeal of statutes by implica.' tion, unless they are totally inconsistent and repugnant to each other, and cannot be reconciled. The claim is that this simply provides for an additional exception in behalf of re-enlisted volunteers, who are endeavoring to get' their bounties under the old law of April, 1867; and so it seems to the court.

The original law, which has been the policy of the state for twenty-five to forty years, is shown in other statutes, namely, in the statute which provides that executors and administrators who have given bond do not have to give security on appeal, nor on a stay of execution.

The two statutes, as I read them, are not repugnant. One provides for an exception which is not noted in the other, but the two exceptions are consistent and both laws may be considered to be in full force and valid throughout.

The motion will be overruled.  