Peavey v. Burket

35 Ala. 141

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

STONE, J.

In the eases of Ex parte, Robbins, 29 Ala. 71, and Exparte Camp, at the present term, we defined, to some extent, what will amount to an endorsement of security for costs on the complaint, or a lodgment of it with the clerk, as required by section 2396 of the Code. It is obvious that, to render such security effectual as a compliance with the statute, it must be given in good faith.

In Ex parte Morgan, 30 Ala. 51, I expressed the opinion, that when security for costs had been given before the commencement of the suit, “ although imperfect, it cannot be said that the plaintiff has failed to give security, and hence the case is not within the provisions of the mandate of the law.” I added that, in rhy judgment, the plaintiff in a case thus circumstanced should be permitted to substitute a new and sufficient bond.

This court now adopts the conclusion announced by me in the ease of Ex parte Morgan, and holds that, inasmuch as the security given in this case, although imperfect, was nevertheless given before the suit was instituted, and appears to have had for its object a compliance with the statute, the plaintiff should have been allowed to execute a new and sufficient security.

Reversed and remanded.