
    Gilman Spalding vs. William F. Bainbridge.
    Gen. Stat. R. I. cap. 195, § 26, provides that “ the court .... shall at any time before final judgment, .... upon motion of any defendant and for cause shown, require the plaintiff to procure .... a sufficient surety ” for costs.
    Under this law a defendant asked that a plaintiff, too poor to give security, might be required to furnish it.
    
      Seldj that an order to give security would be useless unless the court was prepared to dismiss the case for non-compliance.
    Held, further, that such a dismissal would violate Art. 1, § 5, of the Constitution of R. I.
    
      Held, further, that the court in such a case would require evidence of a probable cause of action before allowing the plaintiff to proceed.
    On motion for surety for costs.
    
      January 17, 1879.
   Pee Ctjeiam.

The defendant moves that the plaintiff be required to give surety for costs. It is conceded that the plaintiff is too poor to procure a surety. The defendant, nevertheless, insists that under Gen. Stat. R. I. cap. 195, § 26, he is entitled to an order in accordance with his motion. We do not think that the statute, though peremptory in its terms, requires us to make the order in a case like the present. Such an order would be of no benefit to the defendant unless we should dismiss the suit for non-compliance with it. This the statute, Gen. Stat. R. I. cap. 195, § 27, does not compel us to do, but plainly leaves in our discretion. We certainly should not dismiss the suit, if it clearly appeared that the noncompliance was because of the plaintiff’s inability on account of poverty. To dismiss the suit in such a case would practically amount to a denial of justice and would be inconsistent with the Constitution. Constitution of R. I. Art. 1, § 5.

Z. 0. Slocum, for plaintiff.

B. JV. S. S. LapTiam, for defendant.

We think, however, that before the defendant is put to the expense of making his defence, the plaintiff should be required to satisfy us, by affidavit or otherwise, that he has probable cause of action. Motion dismissed.  