Alabama & Tennessee River Railroad v. Harris

G-OLDTII WAITE, J.- — By section 2398 of tbe Code, corporations were required, before commencing suits, to give security for tbe costs, to be lodged with the clerk; and on tbe failure so to do, it vas made tbe duty of tbe court, on motion of tbe defendant,-to dismiss the cause. Under tbe old law, non-residents were required to give security for tbe costs within sixty days after notice ; and we are aware, that under the construction placed upon that statute by this court, tbe requisition might be complied with at any time before tbe case was called for trial at the term succeeding the notice. — Lyons v. Long, 6 Ala. 103; Reese v. Billing, 9 Ala. 263; Whitaker v. Sandford, 13 ib. 522. If tbe same language bad been used, we might have felt ourselves bound to follow these decisions ; but this is not the case. The Legislature, with the knowledge, as we must presume, of the construction which bad been placed on the statute referred to, thought proper to require that, in suits brought by corporations, the security should be lodged with the clerk before the commencement of the action. The act speaks as clearly as language can speak, and declares that the suit must be dismissed if that is not done; and when tbe Legislature have said that this shall be done before suit, upon what principle is it that courts would be authorized to say that it might be done after the commencement of the action ? Such a course would savor more of legislation than of judicial interpretation. It is better, in all such cases, to stand upon the plain words of the statute. It is urged for the appellant, that this proceeding is not a suit within the meaning of the law. The object was, to provide effectually for all costs ; and suits in which judgment is obtained on notice and motion, are as much within the intention of the law, as those commenced in the usual mode: every reason which exists as to’ the one, applies with the same force to the other. By the charter of the Alabama and Tennessee River Railroad Company, the notice is required to be served by the sheriff, (Acts 1847 — 8, 268); and regarding it as a substitute for the summons, we must hold the suit as commenced, so far as to require security for the costs, when the notice is placed in the hands of the sheriff to serve. Judgment affirmed.