Brooks v. Hicks

Wheeler, J. The Clerk, before issuing any process in the case, might have required the plaintiff to give security for costs, unless he would make oath that he was unable to give such security. (Hart. Dig. Art. 1379.) But he issued the process without requiring the security, and without the affidavit. After having thus issued the process, can he, or the defendant, defeat it, and cause the suit to be dismissed by requiring the security, when the party makes the affidavit that he is unable to give security for the costs. We think not. That would be to defeat the manifest spirit and policy of the provision; which is to exempt a party from the operation of the rule for security for costs, who is unable to give it. That such is the object and intention of the provision is manifest; and that, when plainly discernible from the provisions of a statute, is as obligatory as the letter of the statute; and will even prevail over the strict letter. Literally, the provision applies to a suit “about to be commenced;” but its reason and policy apply equally to a suit already commenced and in progress. We are of opinion, therefore, that the affidavit that-the party was unable to give the security, was an answer to the rule for security for costs; and that there was error in dismissing the case. The judgment is therefore reversed, and the cause remanded for further proceedings. Reversed and remanded.