
    The Mississippi and Alabama Railroad Company, use of John Martin, vs. David M. Ballard et al.
    A party at whose instance a rule for security for costs is granted, may lose his right to have it made absolute, by want of action upon it, or by his own waiver of the right.
    If the party, at whose instance a rule for security for costs has been granted, apply to have it dismissed, before the rule has been made absolute, it is error to strike the case from the docket, because the rule had not been complied with.
    In error from the circuit court of Hinds county, Hon. Albert G. Brown, judge.
    This was an action of assumpsit, to the November term, 1839, of the circuit court of Hinds county, by the Mississippi and Alabama Railroad Company, for the use of John Martin, against David M. Ballard, Baldwin H. Beauchamp, William K. McDonald, Robert Miller, and Joseph A. Miller, founded on a joint and several promissory note for eight hundred dollars. The defendants pleaded non assumpsit. At the September term, 1840, upon motion of the clerk of the court, and sheriff of the county, a rule was granted, requiring the plaintiff to give security for costs, within sixty days. When the case was called at the December term, 1841, the counsel of John Martin moved the court to discharge the rule for security for costs, because he was the owner of large real and personal property, consisting of three plantations and slaves, &c. in said county of Hinds, and offered witnesses in proof of the same, but the court refused to hear the evidence and overruled the motion. Martin then offered to give sufficient security for the costs, and the court refused to permit him to do so. The clerk of the court and the sheriff of the county then offered to withdraw the rule, stating that they had not noticed that the suit was brought for the use of John Martin, who owned a large property in that county, and there was no cause to require security for costs in his case; which application the court also refused, and ordered the rule to be made absolute, and the cause dismissed. The plaintiff excepted to the said several opinions of the court, and filed his bill of exceptions, and' has since brought the case to this court, by writ of error.
    Hughes, for plaintiff in error.
    The record does not show whether the rule for security for costs was entered against the plaintiff, because he would be unable to pay the costs, or because he was a non-resident. We draw the conclusion, however, from the bill of exceptions, that the rule was entered on an affidavit, that the plaintiff would not be able to pay, else the said bill of exceptions would not speak of the solvency of Martin. Taking it then, that the rule was entered because the plaintiff was supposed to be unable to pay, we will examine what are the provisions of the statute on the subject. The acts of November, 1830, ch. 48, sec. 6, (laws published in 1838, p. 315,) provides, that the party shall be ruled to give security within sixty days from the entering the motion; provided the motion is entered on the first day of the term at which the same is made, and provided an affidavit be made of the inability of the plaintiff, &c., and then in the last clause, the section provides, “if such plaintiff shall fail to give such security, being thereto required as aforesaid, such suit shall be dismissed, and execution may issue against the plaintiff, for all costs which may have accrued.” The suit is to be dismissed ; by whom, however, is it to be dismissed % The court below seems to have thought that the clerk was to enter a dis-mission ; for the reason why he would not do what he was asked, was, that he thought the case ought not to have been docketed, yet he thought there should have been some entry on the minutes, for the rule was made absolute in court. The dis-mission, then, of course had to be entered by the court. The rule was not absolute until so entered by the court; and before it was made absolute the parties who entered the rule moved to withdraw it, but this was refused; the very stating the proposition is a sufficient argument, and we have nothing more to say.
   Mr. Justice Thacheh

delivered the opinion of the court.

In this case it seems to appear that a rule had been made for security for costs against the plaintiff, upon the motion of the clerk and sheriff of the court. At a subsequent term the usee of the plaintiff moved the court to dismiss the rule, on the ground that he was possessed of ample property, to which allegation he tendered evidence, but the motion was overruled. He then offered to give sufficient security for costs, which was refused by the court. The said clerk and sheriff then moved to discharge their rule for costs, which was likewise overruled by the court. A judgment was then given, dissmissing the cause.

A rule for security for costs becomes absolute by due application. The party at whose instance the rule is granted may lose his right to have it made absolute, by want of action upon it, or by his own waiver of the right. Unquestionably, upon the party’s direct application for a dismissal of the rule, at any time before it is pronounced absolute, the court may so order, and upon such an application to dismiss the rule it is error to strike the case from the docket, for the reason that the rule has not been complied with. Grimball v. The Mississippi and Alabama Railroad Company, 3 S. & M. 38.

Judgment reversed, the cause directed to be re-instated in the court below, and the rule for security for costs, to be discharged.  