¶1This was a motion, in the court below, for a rule on plaintiff, for additional security for costs. It was based on this affidavit: “James E. Bruce being duly sworn, says that the plaintiff Ball, and John F. Anderson, who was, as affiant believes, the security for costs of the said Ball in this case, are both insolvent, and not able to pay the costs in this cause, as this affiant verily believes.” The court below, upon this affidavit, ruled the plaintiff to give additional security by the following morning. He having failed to comply with this rule, the suit was dismissed and judgment rendered against him for the costs of suit, to reverse which, he prosecutes this writ of error.
¶2It is insisted, that it is a matter of discretion, whether the court will rule a party to give security for costs. This may be true, as a general proposition, at the common law. And it was so held by this court, in the cases of Gesford v. Critzer, 2 Gilm. 698, and Selby v. Hutchinson, 4 Gilm. 319, on applications, in the first instance. This is, however, a second application, and for additional security, the plaintiff having given security, under a former rule of the court. When he complied with that rule, the sufficiency of the security must have been satisfactory to the court, or to the clerk approving it at the time, and for aught that appears the defendant may himself have been perfectly satisfied with its sufficiency at the time it was given.
¶3This affidavit fails to disclose any fact, showing that the circumstances of the principal and security to the bond for costs had changed, after it was approved. There is nothing to show that they were not altogether as able to pay the costs as when the bond was first given. From anything appearing in the affidavit, it may have been filed to reinvestigate the question of the solvency of the surety, after the bond was filed, or it may have been an independent motion, upon the ground that the security had become insolvent after the execution of the bond. We think this affidavit was wholly insufficient, upon which to base a motion for additional security, although it may have been proper, on an application for security for costs in the first instance. Had the affidavit been sufficient for the purpose, and the court had ruled him to give security, either on the first or subsequent application, we should have regarded the case as falling within the rule announced in the cases referred to above! But until the court has before it a sufficient affidavit, he has no power to make the rule under the second section of the cost act, especially where its sufficiency is not admitted by justifying under it, or in some other mode.
¶4The judgment of the court below is reversed, and the cause remanded.
¶5Judgment reversed.