
    [Lancaster,
    May 17, 1824.]
    M‘FARLAND against BROWN.
    IN ERROR.
    A rule of court, requiring a plaintiff, who has taken the benefit of the insolvent laws, after the institution of his suit, to give security for costs, on pain of suffer, ing a nonsuit, may be properly enforced in cases, the beneficial interest in which .would pass to the assignees of the insolvent; but to apply such a rule to a case in which damages are claimed for a personal tort, is erroneous.
    
      M‘Farland, the plaintiff in error, brought an action of slander' against.Brown, the defendant in error, in the Common Pleas of Dauphin county, in which he obtained an-award of arbitrators, for three hundred dollars damages. From this award the defendant entered an appeal. While the Suit was pending, MlFarland became insolvent; but whether he was discharged under the insolvent laws, there was nothing in the record to show.
    On the 21st October, 1822, the defendant’s counsel, filed an affidavit of defence, and obtained a rule on the plaintiff to give security for costs, by the first day of the following term, or suffer a nonsuit.
    This motion was founded on the 35th rule of the Court of Common Pleas of Dauphin county, which was as follows: ‘‘In cases where the plaintiff resides out of the state, in qui tarn, actions, in suits on administration and office bonds, or where the plaintiff, after suit brought, has taken the benefit of the insolvent laws, the defendant on motion and affidavit of a just defence against the whole demand, may have a rule that the plaintiff give security for costs, at or before some period to be appointed by the court, and for want of such security, the court on motion may order judgment of nonsuit to be entered.”
    On the 19th November, 1822, on motion of the defendant’s counsel, the court directed judgment of nonsuit to be entered, upon which the counsel for the plaintiff sued out a writ' of error.
    
      Elder, for the plaintiff in error.
    
      Douglass, for the defendant in error.
   The opinion of the court was delivered by

Gibson, J.

The rule of court-on which this nonsuit was entered, is applicable only to cases in which the beneficial interest in the action has passed to the assignees; in regard of which it is not only competent in the court to make such a rule, but very proper to enforce it. The person of the insolvent, is discharged; and as he is the legal 'party on the record, I apprehend the assignees, who are no more interested than the other creditors, would not be personally liable: so that the defendant, if he should obtain a verdict, could look neither to the person nor property of any one for his costs. It is very proper, therefore, that the creditors before they are permitted to proceed, should render him secure against a loss which never could have happened if the suit had ori-ginally been brought by the assignees. The object of the rule went no further; for a claim to damages for a personal tort, is, I believe, the only one which is so intimately connected with the person as to be inseparable from it, by this kind of assignment, and an action on it is of such rare occurrence, as probably not to have been in the contemplation of the court, or to seem to require an exercise, of its legislative powers to regulate the practice in conducting it. But if the intention were to include cases of this sort, I should deny the power of ifche court to establish such a rule.' What right has a court to exact security for costs from a party whose domicil is within its jurisdiction and whose person is subject to its process? The tribunals of the country are, of common right, open to every one, who is answerable, either in person or property, for the goodness of his demand. Were it otherwise, every sort of injury might be inflicted with impunity on the person of any one who should be too poor or too friendless to answer the cautious exactions of what might be thought to be preventive justice. But such was not the intention of the rule, and its application to this case was an error. The judgment of non-suit is reversed, and the record remitted with directions to proceed in the cause.

Judgment reversed.  