#### S. W. KENNEY, Administrator, v. SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 23 September, 1914.)

1. Appeal and Error — Defendant’s Appeal — Appellee's Costs — Costs —Prosecution Bond — Interpretation of Statutes.

Where the defendant to an action has appealed from an adverse judgment rendered in tlie Superior Court, resulting in a reversal thereof in the Supreme Court, he is, upon motion made in the Supreme Court, under Revisal, sec. 1251, entitled to a judgment for his costs on appeal against the sureties on plaintiff’s undertaking given in the lower court for the prosecution of the action; for under the language of this section and section 450 this undertaking or prosecution bond is required of the plaintiff to secure all costs, whether in the Superior or Su*567preme Court; and Revisal, see. 605, requiring the appellant to give an undertaking for the costs on appeal, cannot apply to-such instances.

2. Same — Costs Superior Court — Penalty of Bond — Application to Increase.

Where the defendant has been successful on his appeal to the Supreme Court, and his judgment for costs against the sureties on the prosecution bond of the plaintiff results in making insecure the costs in the Superior Court, the remedy is by application to increase the penalty of the bond.

Hoke and Allen, JJ., dissenting.

Appeal from- George W. Connor, J., at May Term, 1914, o-f BERTIE.

Winston & Matthews for plaintiff.

Murray Allen for defendant.

Walker, J.

This is a motion to tax the sureties on the prosecution bond of the plaintiff with the defendant’s costs in this Court, which were awarded in his favor and against the plaintiff upon the granting of a new trial to the defendant, and for judgment against plaintiff and his sureties for the same. The motion was duly docketed and heard at this term. It is based upon section 1251 of the Kevisal of 1905, which reads as follows: “Whenever an action shall be brought in any court in which security shall be given for the prosecution thereof, or when any case shall be brought up to a court by an appeal, or otherwise, in which security for the prosecution of the suit shall have been given, and judgment shall be rendered against the plaintiff for the costs of the defendant, the appellate court, upon motion of the defendant, shall also give judgment against the surety for said costs, and execution may issue jointly against the plaintiff and his surety.” Defendant contends that the expression, “security for the prosecution of the suit or action,” refers to the undertaking given in the court below for the prosecution of the suit and the payment of the costs of defendant recovered in that court; and when there is an appeal, defendant, who succeeds in this Court, is entitled to judgment for his costs *568against plaintiff and bis sureties upon tbe same undertaking, or wbat is sometimes called tbe prosecution bond, wbicb is intended, if defendant’s contention be correct, to secure defendant’s costs botb in tbe Superior Court and in tbis Court, as a part of tbe costs in tbe action, tbe condition of tbe prosecution bond being tbis: “That tbe same shall be void if tbe plaintiff shall pay tbe defendant all such costs as tbe defendant shall recover of him in tbe action.” Revisal, sec. 450. That when there is an appeal, tbe “action” continues to be such in tbis Court as much so as if it were pending in tbe court below, and tbe bond given below was intended, by its very terms, to cover all tbe costs of defendant incurred in tbe action, botb those accruing below and here, as they are all “costs in tbe action.” It will be seen that section 1251 refers only to tbe costs of defendant, and provides, for instance, that if, when an appeal is taken, be is sustained in tbis Court, judgment shall be entered against plaintiff and bis sureties for defendant’s costs; but tbis could not be done, and tbis provision would not be complied with, if plaintiff’s contention is right, that it refers to appeal bonds only, as where defendant appeals and gets a judgment for bis costs in tbis Court, there would be no appeal bond of tbe plaintiff upon wbicb to enter judgment, and tbe only bond that would answer to tbe description of tbe statute would be bis prosecution bond; otherwise, in such a case,-this part of tbe statute would become nugatory. Besides, tbe plaintiff’.s contention is fully met by tbe fact that tbe Legislature bad already given a remedy on appeal bonds by section 605 of tbe Revisal, wbicb provides: “Undertakings for tbe prosecution of appeals and on writs of certiorari shall make a part of tbe record sent up to tbe Supreme Court on wbicb judgment may be entered against tbe appellant or person prosecuting tbe writ of cer-tiorari and bis sureties, in all cases where judgment shall be rendered against tbe appellant or person prosecuting said writ.” Take our case for illustration. Defendant appealed and. was awarded a new trial. . Section 1251 says that tbis Court .shall give judgment against plaintiff and bis sureties for tbe prosecution of tbe action; but tbe latter has no sureties except those *569on bis original prosecution bond given below,' as be did not appeal; so tbat it follows tbat reference must necessarily be made to bis prosecution bond, and we must 'adjudge tbe costs of tbis Coiirt against tbe parties to tbat bond, if we would enforce tbe statute asj we think, it is clearly and positively written. Again: Section 1251 requires tbis Court to give judgment for defendant’s costs against plaintiff and bis sureties where a bond “shall have been given,” not for tbe costs of an appeal, but' “for tbe prosecution of tbe action.” These words have a well known meaning in law, and refer only to tbe prosecution bond. If tbe defendant appeals, in which case tbe plaintiff would give no appeal bond, being appellee, and “judgment shall be rendered against tbe plaintiff for tbe costs of tbe defendant,” tbe appellate court is required to give judgment- also against plaintiff’s sureties for such costs; but there would be no sureties, as we have seen, and we could not comply with tbis clearly expressed mandate, unless we resort to tbe prosecution bond, which is the only one described in tbe section, as it is given “for tbe prosecution of tbe suit” and not for tbe prosecution of an appeal. Eeplying to tbe suggestion tbat section 1251 applies only to cases in which tbe plaintiff appeals and gives an appeal bond, tbe words, “security for tbe prosecution of an action,” referring to tbat kind of bond, it may be said tbat such a construction would require a radical change in phraseology and would not secure defendant’s costs, on bis own appeal, if they were adjudged against tbe plaintiff. We are not authorized to presume tbat tbe Legislature meant what it did not say, and used language which has only one meaning, when it intended tbat it should have another and very different one. Besides, tbe section is so broadly worded as to apply to all cases where costs are adjudged for tbe defendant against tbe plaintiff, and not simply to those where the plaintiff appeals. Tbe suggested construction would be inconsistent with tbe language of tbe section, or, at least, is not warranted by it; and, too, tbe case where tbe plaintiff appeals and gives security is fully provided for, as we have seen, by Eevisal, sec. 605, so tbat there is nothing for tbe suggestion to rest upon. It is also argued tbat tbis section was *570taken from tbe Revised Code, cb. 13, sec. 126, and that it originally referred to appeals from justices of tbe peace, and from tbe county .court to tbe Superior Court. Tbis may be true, and yet it does not change tbe conclusion, but ratber strengthens it. It will be found by comparing tbe two sections, that radical changes have been made in section 126 of tbe Revised Code by section 1251, and there is such a wide departure from its language and meaning as to show that tbe Legislature was conscious of tbe abolition of tbe county courts when it amended tbe law, and intended so to frame tbe new section as to make it conform to tbe present system and procedure, so very different from tbe former ones. Reading tbe two sections together, we cannot escape tbe conviction that tbe Legislature intended, for reasons deemed sufficient, to change tbe law so that prosecution bonds given in tbe Superior Court should be liable for all of tbe defendant’s costs of tbe action, at any stage, whether incurred below or in tbis Court. Section 1251 cannot be restricted in its application to appeals from tbe court of a justice of tbe peace, for tbe first sentence of tbe section would not apply to such a court, as no prosecution bond for costs is given there, but only in tbe Superior Court, or in tbis Court if an action is brought here against tbe State, or perhaps in some other cases not cognizable by a justice of tbe peace.

An argument ab inconvenienti may be urged against our view, but it cannot be permitted to prevail against tbe plainly expressed intention of tbe Legislature, or tbe clear and explicit terms of tbe law. Black’s Interp. of Laws, p. 87. We have, generally, nothing to do with tbe wisdom or unwisdom, tbe policy or impolicy of an enactment, but must abide by tbe will of tbe lawmaking body. Ita lex scripta est. But we must not be understood as admitting that there will be any inconvenience flowing from our construction which is not likely to occur in tbe case of other statutes where no doubt is entertained as to their meaning. If it should appear that tbe costs of tbis Court will probably exhaust tbe prosecution bond, and leave those of tbe court below unsecured, there is ample remedy to avoid tbe supposed unjust result by application to increase tbe penalty of tbe *571bond — a not unusual procedure in tbe courts. Jones v. Cox, 46 N. C., 373; Adams v. Reeves, 76 N. C., 412; Vaughan v. Vincent, 88 N. C., 116; Rollins v. Henry, 77 N. C., 467. The Legislature has recently amended Revisal, sec. 1251, by requiring the costs to be taxed here against the plaintiff, without any motion by defendant, making it mandatory upon us to act in the first instance. Public Laws 1913, ch. 189. Haying this section under its direct supervision with a view to its amendment, it cannot be supposed that the Legislature was inadvertent to the fact that the county courts had ceased to exist, and therefore, if our construction of it is not correct, that it needed further revision to conform it with existing methods of practice and procedure, and our changed system of courts. It had altered the language of the corresponding section of the Revised Code radically and fundamentally, indicating clearly a purpose to effeet a material change in procedure, and it used the words “security for the prosecution of the action,” which had at the time a well defined meaning, and also the words “appellate court,” which in view of the context could mean only this Court. Where a statute is^reenacted literally or substantially, words or phrases used in the former which have received a settled construction should be interpreted accordingly in ascertaining the meaning of the later enactment. Black’s Interp. of Laws, 159 et seq. The words “security for the prosecution of the action,” in chapter 13, sec. 126 of the Revised Code, undeniably meant • the prosecution bond, and^ under the rule, should now have the same meaning. If the prosecution bond was not intended, the inaptness of the phraseology would hardly have escaped attention.

The motion is allowed, and the costs will be taxed accordingly.

Motion allowed.

Hoke and AixeN, JJ., dissent.