
    George W. House, et al. vs. George P. Bierne.
    A plaintiff in an attachment, who has given bond on suing out the attachment, obligating himself to pay the costs of the attachment suit, cannot be required to give any other security for costs, until the surety in the bond shall be adjudged insufficient.
    In error from the circuit court of Hinds county, Hon. John H. Rollins, judge.
    This was an attachment sued out by George W. House, Joseph A. McRaven and Archibald L. Y|rser, who were partners under the name and firm of House, McRaven & Oo. against George ,P. Bierne, returnable to the April term, 1839. At the time of suing out the attachment, the plaintiffs gave bond with Eli M. Lawrence as surety, obligating themselves to pay all costs and damages that might accrue for the wrongful suing out of the attachment. At the December term, 1841, Joseph A. McRaven made affidavit that Eli M. Lawrence was a material witness for the plaintiffs, and that he could prove facts which could not be proven by any other witness known to the plaintiffs, and thereupon moved the court to release Lawrence as surety on the attachment bond, and permit the plaintiffs to substitute other good and sufficient security in his stead, and they offered a new bond, which motion the court overruled, and the plaintiff excepted.
    At the December term, 1842, a rule was taken against the plaintiffs, upon motion of the clerk of the Court, requiring them to give security for the costs of suit, which at the June term, 1843, was made absolute, and the cause dismissed. Afterwards during the same term, the plaintiffs entered a motion to reinstate the cause, tendering a bond with security for costs, and supported their motion by various affidavits, which are unnecessary to be noticed here, as they have no bearing on the point on which the opinion of this court turned; the court below overruled the motion to reinstate the cause, to which the plaintiffs also excepted, and they removed the case to this court by writ of error.
    
      J. F. Foute, for plaintiffs in error.
    This was an attachment issued against Bierne; and E. M. Lawrence became one of the securities on the bond given before the issuance of the attachment, as required by statute. At the December term, 1841, the plaintiffs moved the court to release Lawrence from the bond, and to give another security or another bond, on the ground that the testimony of Lawrence was material and important to plaintiffs, as shown by the affidavit of McRaven, one of the plaintiffs ; stating that Lawrence would prove material facts that plaintiffs could prove by no other witness known to them. This motion was overruled by the court, and exception taken, which is the first error assigned by plaintiffs.
    That this refusal of the court was erroneous, we rely on numerous authorities, among others, Hampden’s ■ Case, 3 State Trials, 842, cited and approved in Roscoe’s Ev. Ill; see also McNally’s Ev. 59; and Greenleaf’s Ev. 501, 502, sec. 430; also 459, 460, sec. 392, note 1, and cases cited; and cases Leg-gett v. Boyd, 3 Wend. 376; Tompkins v. Curtis, 3 Cow. 251; Allen v. Hawk, 13 Pick. 79 ; Beckley v. Freeman, 15 Pick. 468; also numerous cases on this point, and the practice of courts, collected in Cow. & Hill’s Notes, 257, 272, to 1 Phillips’s Ev. 133, 137.
    These authorities, and the convenience, reason, and justice of the motion by plaintiffs, we think conclusively show the error of the circuit court; especially when there is no statutory prohibition to the granting such motion, and when no objection was made by defendant to the bond offered, in its form or substance, or to the solvency of the security offered to be substituted for the one whose testimony was required. It is apparent that if this motion had been granted, a fair trial of the cause would have been had at December, 1841; the refusal of this m6tion forced plaintiffs to continue; subsequently, at December, 1842, a rule by clerk and sheriff was entered against plaintiffs for costs, and at June, 1843, this motion was made absolute. On motion of defendant, .who had not entered the rule, and that, too, when the record shows that plaintiffs had done all in their power to comply with the rule, and had every reason to believe they had done so, and had, in fact and in law done so; but if not, the clerk and sheriff, who alone asked for the rule, were satisfied, and willing and desirous to waive or withdraw the rule, but this privilege was denied them by the court, and their act was made available to defendant.
    But the next error to be noticed we think still more palpable and striking. It will be recollected that this suit was commenced by attachment issued by a justice of the peace; that bond and security were taken, and returned into court for the costs of the suit by plaintiffs, as well as to answer in damages to the defendant in attachment. To this bond, or its sufficiency, or the solvency of the security therein, no objection was ever made; the defendant and all officers of court then had, already, ample security for costs, and the bond in file. By what rule of law or practice could defendant or any one else require further security for costs, until that given in the attachment bond was shown to be insufficient, which was not pretended in this case?
    The act of 1830, sec. 6, (How. & Hutch. 586, sec. 40,) under which the motion was entered in this case, and by virtue of which the court enforced the sixty day rule and ordered the dismissal of the cause, is in these words: “ when any process shall issue, out of any court of law or equity in this state, at the suit of any person residing therein,” <fcc. Now this process was not issued out of any court of law or equity, as provided for, or intended by the statute, but was a process returned into the circuit court of Hinds county, accompanied by bond and security for costs and damages, under provisions of another statute, both of which, may and can stand together, giving to each, full effect, and should be so construed ; and the legislature of 1830, in passing the act under consideration, must be presumed to have known that the costs were to be secured by the provisions of the attachment law, and hen.ce intended only to provide for another and different class of cases.
    
      The construction given by the circuit court to the act of 1830, is rigid, literal and harsh in practice, and not in the spirit in which such statutes should be construed or enforced. The expression, “ such suit shall be dismissed,” &c., used in the concluding paragraph of the section, is considered by the court as positive, peremptory, and admitting no discretion. That “shall" often means “ may," and is so construed by the courts, and that it should be so construed in this statute, are principles so obvious and familiar, that we deem it unnecessary to present authorities or argument in their support. But if mistaken in the true and proper construction of the act of 1830, H. & H., still there can be no doubt, that the attachment bond, until it was set aside, for some legal reason, or the solvency of the security therein, was made doubtful, by proper showing was good and ample security and indemnity for costs, and no rule or order under the statute could properly be made on plaintiffs.
    
      Hughes, on the same side.
   Pek Curiam.

The plaintiffs instituted this suit by attachment, and pending the cause it seems that they were ruled to give security for costs, and for a non compliance with the rule, the case was dismissed, and judgment rendered against the plaintiffs for costs. It seems that there was some understanding between the clerk and the plaintiffs concerning the costs, the plaintiffs having tendered a bond for their payment within the time prescribed by order of the court. We would remark that it is a harsh practice to dismiss for want of security for costs, if security be tendered at any time before the dismissal is entered. But whether such dismissal could be sustained, is an immaterial question in this case.' The plaintiffs-had given bond on suing out the attachment, in which they expressly obligated themselves to pay the costs in the attachment suit, and this was sufficient, until the surety in the bond should be adjudged insufficient.

It seems that at a previous term an application was made by the plaintiffs, to substitute a new bond, and other security, in order that they might use their co-obligor as a witness, but the court refused to allow a new bond to be given. This question does not come properly up, as the case was dismissed. Such an application, made at the trial, might, after final judgment, properly present the question. We will only remark that it is a common practice to substitute new bond and security, in order that the security in the original bond may be made a competent witness. 3 Phillips’s Evidence, 1570.

The judgment is reversed and the cause remanded.  