¶1(dissenting.) I cannot concur in the opinion of the majority of the Court.
¶2It has been long settled in this State that an order requiring a plaintiff to give security for costs by a fixed day, is final, after the expiration of the time, and beyond the control of the Court, as to its rescission or modification. — McCollum vs. Massey and McNeill, 2 Bail., 606 ; Fonville vs. Richey, 2 Rich., 10; McDermaid vs. Earnest, 4 Strob., 322.
¶3If the Circuit Judge had considered the security taken as a compliance with the order and discharged the rule against the Clerk, his action, could not have been reviewed by this Court; holding, however, “that the plaintiffs, having failed to comply with the order, became non-suited,” which, in my judgment, placed the whole matter beyond his control, he, nevertheless, regarded it as within his power to excuse the default as arising from “ mistake, or, at furthermost, excusable neglect,” setting aside the order for non-suit and extending the time for entering the security. The moment he admitted that the plaintiffs were non-suited (which, in express terms, he did,) what order could he make for the restoration of the cases ? The plaintiffs by the non-suit were out of Court.
¶4The order was made on the 17th of February, 1870. The Code was adopted on the first of the following March. Plow could the Code apply to an order made before its passage, the result of which, on the non-performance of the conditions it imposed, was final and conclusive.
¶5The order of June.4th, 1870, was not made by any proceeding under the Code. If a party out of Court can be restored to the status which he has lost in it by the 197th Section, which allows relief in cases of mistake, a proceeding for that purpose must be entered according to the requirements of the Code. No conformity to any course prescribed by it was shown in the Court below; on the contrary, the whole matter was disposed of on the rule against the Clerk, which had issued on the defendant’s motion. If it is put upon the ground that it was relief to a party from a judgment under the Section referred to, the record fails to shew any action on the part of the plaintiff to that end, or notice to the defendant of any motion by which it could be attained.