
    Josiah Jones vs. Levi Kearns.
    ^ the bond, given by a plaintiff for the prosecution of his suit with effect, &c, be lost; or, if the security in the bond become insolvent, or remove out of the state, the courts, in either of these cases, have no power to compel the plaintiff to give new or additional security for the costs.
    This was an action on the case, brought by Jones against Kearns, for a malicious prosecution of Jones upon a charge of burglary, of which he was acquitted.
    The suit was originally instituted in the circuit court of Claiborne county, from whence it was removed by defendant" by change of venue to the circuit court of Sullivan.
    After the cause had been pending several years, a motion was made by the counsel of the defendant, at the March term of the circuit court of- said last mentioned county, that the plaintiff should be ruled to give good and sufficient security to prosecute his suite with effect, or pay all costs, &c., it appearing that the bond, originally given by him, when he commenced his suit, was lost. This motion was opposed, principally upon the ground, that John Cocke (who the clerk of Claiborne circuit court had certified was the original security,) was still liable; and it was not shown, that he was insolvent. The court ordered the plaintiff to give sufficient security for the costs, on or before the first day of the succeeding March term of said court, or show cause to the contrary — and if security were not given by that day, the cause to be dismissed.
    The plaintiff failed to give the security required by said order, on or before the day specified therein; whereupon, on motion of the defendant, it was considered, and ordered by the court, that said suit be dismissed, and the defendant recover his costs, &c.
    
      M‘Kinney for defendant in error.
   Whyte, J.

delivered the opinion of the court. The question intended by the counsel, to be submitted to the court upon the record, is, whether, when a plaintiff has once given bond with sufficient security, for the prosecution of his suit at the commencement thereof, pursuant to the act 1787, ch. 19, he can afterwards, upon the insolvency ofthat security, his removal out of the state, or the loss of the prosecution bond, or upon the failure of the security by any other means, not caused by the default of the plaintiff, during the pendency of the suit, upon the happening of the contingency of failure, &c., be lawfully ruled by the court to give new and other security.

It was argued at the bar, that a practice had prevailed in the circuit courts, of ordering the plaintiff to give new security, upon failure of the security given to the clerk, upon the commencement of the suit. On the other side it was argued, that this practice, if entitled to that name, was not a general practice, but that instances had occurred, where the motion to dismiss, unless new security for costs were given, had been sustained, and in others where the like motion had been rejected. It was also said, that a case each way had occurred in this court, the motion being sustained in the one, and refused in the other. The result seems to be, that there is no settled practice in the case, sanctioned by the supreme court; but instances of similar applications, experiencing dissimilar determinations, since the establishment of the chancery courts in this state, have occurred in them, and probably with similar results. In those terms of these courts, which have been held by judge Catron and myself, I am authorised to say, that the few applications made, have always been refused. Upon the whole, there is no practice of such a character, as would authorise, much less compel, this court to follow it, and give to it its sanction, independent of its being supported, either by the principles of the common law, or by act of assembly.

Can this application, to dismiss this suit, be supported upon either of those grounds?

By the principles of the common law, “that courts are always open, and that justice will be denied or delayed to no one,” no actual security for the prosecution of a suit, and the payment of costs, was required of the plaintiff. His body resident within the jurisdiction pfthe court, and amenable to its process, was held in all cases sufficient security; and the only extension (if it may be so called,) of the rule in latter times, is, in a few cases, under particular circumstances; as in actions of ejectment and quitam, where the lessor of the plaintiff in the first case, and the plaintiff himself in the last, is unknown to the defendant; the latter may call for an account of the residence, or place of abode of the former, which if not given, the court will stay proceedings until security is given for payment of costs. (Tidd’s Practice 476, 477; 1 Strange’s Rep. 681, 697, 705.) Also in ejectment, if the lessor of the plaintiff is an infant resident abroad, or dead, proceedings will be stayed, until a responsible person undertake for the payment of costs; and generally where the plaintiff resides abroad, or Is out of reach of the process of the court, the proceedings will be stayed until his return, or security is given for the payment of the costs. (Tidd’s Practice 478, 479; Cowper’s Rep. 24; 1 Term Rep. 491.)

The principles of the common law, govern and direct the practice in equity on this point, where it is held, that the body of' the plaintiff, or if there are several plaintiff, the body of one of them resident within the jurisdiction of the court, is a sufficient security for the costs. An application to the court of chancery for security for costs, founded on the fact, that the plaintiff is gone abroad, out of the jurisdiction of the court, is not sufficient to sustain the application, unless it further appears, that the party has gone abroad, with the intention of making his residence theie; and the application must be made also at the earliest opportunity afterwards, or after the knowledge of absence has come to the defendant making such application. Craig vs. Bolton, (2 Br. Ch. Rep. 609;) Green vs. Charnock, (3 Br. Ch. Rep. 371;) Hoby vs. Hitchcock, (5 Ves. Rep. 699;) Walker vs. Easterly, (6 Ves. Rep. 612, 10 Vesey 287;) White vs. Greathead, (15 Ves. Rep. 2;) Dyott vs. Dyott, (1 Maddox’s Rep. 187.)

' Thus we see by the principles of the common law, governing the courts, both of law and equity, a plaintiff shall not have his cause turned out of court for want of security for costs, or from his inability to give it, if he is personally resident within the jurisdiction of the court-, and amenable to its process. It remains to be seen, what alteration has been made in this respect by the act of 1787, ch. 19.- The first section enacts, that the clerk, before issuing any writ, or leading process, shall take sufficient security of the party to prosecute, and in case of failure, to pay all costs, &c. The second section requires the clerk to enter in a book, the writ or process issued, the names of the parties with the securities and their places of abode respectively, and have the same before the judge of the court, subject to the examination of the court. Section 3 enforces the performance by the clerk, of his duty in taking the security prescribed by the first section, under the penalty of £100, payable by him to the defendant, and £50 to the person suing for the same.

This act is referred to in the argument, as the ground upon which the application to dismiss a suit for not giving a second time security for the costs is made, and is relied on as affording a sufficient warrant for the courts in the exercise of this power. Does the act give the power claimed for it? The true construction of the act must be derived from its words and spirit. The words of the act give no such power. A particular case of grievance and inconvenience, in conducting law proceedings, is stated by the preamble, for which the enacting clause applies the remedy— not in general terms, laying down the principle guiding the relief, and leaving the case, as they may or may not come within the purview of the act; but a specific remedy is given, single, certain and definite in its nature — admitting of no latitude of construction in making the application, and seemingly incapable of being misunderstood. Such is the letter of the act; and by what rule of construction can it be extended beyond the specific remedy, and be said, that its spirit is not expressed by the letter? Statutes are formed, in modern times, very differently from what they anciently were; they are now considered as plainly expressive of the'whole will of the legislature on the subject, and what is not stated in the statute, is not intended by the law-makers. In the present case, the act introducing an alteration in the common law, must be construed as prescribing the extent of the alteration,- and the legislature having the whole matter before them, have said, “thus far we will go, and no farther.” After the provision of this act has been complied with by the plaintiff, in giving a prosecution bond with security before the issuing of the writ, it is wholly gratuitous to say, that the courts have the power to add other provisions to it, and make other and further alterations in the common law.

The assumption of such a power by the courts, as is contended for by the counsel of the defendant in error, is not only unwarranted by the rules laid down in the books for the construction of statutes, but is repugnant to the spirit of the common law, magna charta, and our own constitution; which last says, “that all courts shall be open, and every man for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of iaw, and right and justice administered without sale, denial or delay.” Independent of these cogent reasons, the inexpediency of giving such a power, (and therefore not to be inferred,) is well illustrated by the record before the court, wherein it appears, that the plaintiff has been laboring for years, in different courts of his country, to have his alleged rights established, and justice administered to him; and when he is about to attain this much desired and long looked for event, at the suggestion of the defendant, that he is unable to pay the costs, if the cause should go against him, his suit is thereupon dismissed, because be is not able now, after a protracted litigation of seven years, to give new security for costs; when, in all probability, his present inability has been caused by the delays of the defendant, and the accumulation of costs, (the consequence of these delays,) which the record shows in this case, amount to $693.

But the present case is not the only one, where such a practice would.operate injustice in the extreme; its character, from its very nature, (whatever may be the case,) must, in general, if not always, be that of injustice. Suppose the least favorable case for the plaintiff, to wit, that he is in the wrong, and would of course be cast at all events, the costs in this case would be no object to either party, not to the plaintiff, for his inability, nor to the defendant, fpr the judgment of dismission exempts him. But grounds of dissatisfaction exist on the part of the plaintiff, in being denied the privilege and satisfaction of having his cause tried by the tribunals of his country. Suppose the case doubtful, which of the parties ought to succeed; in this case the plaintiff might and would justly complain, that he was deprived of the common benefit of the law, and an injury would also be done to the witnesses and officers of the court, by depriving them of the alternative of a double case, which might eventuate in their favor by a decision against the defendant, which would give them their costs.

But the most common case, and the one which it is believed originated, and still continues to urge such applications, is where the right is unquestionably with the plaintiff, and where the only defence against that right, is the success of the motion to give new security; and it very often occurs, where, by force or fraud, the defendant has obtained possession of the plaintiff’s property; and where the continued operation of the defendant’s injustice, always incapacitating the plaintiff, forever secures the defendant from exposure ■and restitution.

Can it be said in these cases, or even in any case, that dismissing a plaintiff’s cause from court, upon the casualty of the failure of the security given pursuant to the act of 1787, (ch. 19,) because he is unable to give security a second time for costs, that he enjoys the protection and benefits secured to him by the constitution? Can he be said, in the language of that instrument, “to have all the courts open to him, and for an injury done to him in his lands, goods, person or reputation, he has remedy by due course of law? and right and justice administered to him, without sale, denial or delay?” It is believed it cannot be so said.

The sustaining of such a motion,is in its effect a most cruel engine of oppression, wielded against the poor and the unfortunate ; with the aggravation of having the sanction of a court of justice. And we are all of opinion, that whatever practice of .this kind has heretofore obtained in the courts of this state, it should be henceforth discontinued in all of them, as it has already been done in some.

The judgment of dismission, rendered by the circuit court, must be reversed, and the cause remanded to the court from whence it came, to be proceeded in according; to law, without requiring new security.

Judgment reversed.  