
    James Boyd v. Dempsy Graham.
    
      Before Mr. Justice Earle, at Chester, Fall Term, 1833.
    ofnsTcurityshlp of costs on the ing°to’ the°pre-Tid to ¿e a com’ pUance withTñ sccuriiye<tolibe given to the olK.uie of Court for futuro prac-the°’ ?orinUbanf sccurit* for costs’ '
    At September special Term, an order was made in this case requiring the plaintiff (who had removed from the State) to “give security for costs to the clerk of the Court on or before ^ third Monday in October next, or be nonsuited.” On the call of the case for trial the defendant moved for a nonsuit, because security had not been given to the clerk according to the order. Mr. M’Aliley, the counsel for the plaintiff, produced the record on which was endorsed an acknowledgement without date signed by him, that he was liable for the costs, and submitted affidavits to prove that this was done before the time ’™ited by the order had expired, and to sustain a motion then made on the part of the plaintiff, for leave to supply the date or to file the required security nunc pro tunc. His Honor held, that the endorsement of the security on the record was not a compliance with the terms of the order to give the security to the clerk, who was the proper officer to take the obligation and to approve of the security, and that any other mode would be inconvenient and productive of mischief. He therefore refused the motion to amend, and ordered a nonsuit, which the plaintiff now moves to set aside.
    
      M’Aliley, for the motion.
    In Fuman v. Harman, 2 M’C. 442, the security was required to be given to the clerk, and yet the Court held that the endorsement of the securityship on the record was a compliance with the order. The record is presumed to be in the custody of the clerk, and the legal presumption is that the security was taken by him. The entry being without date cannot be material: that was supplied by proof. But if the order has not been literally complied with, it has virtually, and according to the opinion expressed by the Court in M’Collum v. Massey &; M’Neil, 2 Bail. 608, the Court can order the security to be given nunc pro tunc.
    
    
      Williams, contra,
    contended that the order was specific, and not having been complied with, the case was out of Court, and therefore it cannot be restored, for the Court possesses no further power over it. A judge cannot modify or repeal an order made by another judge at a previous term.
   O’Neall, J.

The case before us cannot be distinguished from that of Furnan v. Harman 2 M’C. 442. The security for costs in that case and in this, was entered in precisely the same way; that the order here requires that the security be given to the clerk, cannot alter the case. Under a general order for security, regularly the security ought to be given to and approved by the clerk. But Furnan v. Harman, sanctioned an exception to strict practice on the legal intendment, (I suppose,) that as the entry of security is on the back of the record, it must be presumed to be entered into before the clerk, in whose possession the record is legally presumed to be.

The case of M’Collum v. Massey & M’Neill 2 Bail. 606 would, we think, have justified the Court on the facts shewn in this case, to order the security to be filed nunc pro tunc.

The entry of the security being without date was a wholly immaterial circumstance ; the true date could be established by testimony aliuncle.

From these views, the motion to set aside the nonsuit must be granted. But we agree fully with the presiding judge, that the practice of entering security on the back of the record in the informal and unauthorized way in which it is now often done, is a very loose one and ought to be corrected.

It is therefore ordered, that as a future rule of practice, security for costs shall be taken by the clerk of the Court in each district on the back of the record, in the following form, to wit:

-1 (or we, as the case may be) acknowledge myself (or ourselves) liable for the costs of this case; and consent that if the plaintifi' (or plaintiffs) fail to recover in this case, that the defendant (or defendants) may have execution for the same against me (or us, as the case may be.) December 183 .

(Signed) A. B.

or

In the presence of > J. R. Clerk of District.” $

A. B. and C. D.

And no other entry of security for costs, shall be regarded as a compliance with an order of the Court of Common Pleas requiring security for costs to be given.

The motion to set aside the nonsuit is granted.

Johnson and Harper, Js. concurred.  