JAMES N. BIGGERSTAFF v. DAVID N. COX.

Whore a suit it* pending in Court, and after several terms an older is mrde that the pHintiif be permitted “ to continue his suit without iuilher security :M It was iiem), that under such order, being hound to pay his witnesses for their attendance, as well after this older as beiore, he was entitled to his full come, under the act of 183G, ch 31, sec. 79.

This was an appeal from iho judgment of a Justice of iho Peace of McDowell county, brought by successive appeals totha Superior Court of that county, and decided at the Spring Term, 1864, his Honor, Judge Dice: presiding.

*535At Spring Term, 1862, of the Superior Court, defendant filed an affidavit, setting forth the insolvency of the sureties of the prosecution bond which had been filed by the plaintiff. Upon which, a rule was obtained on the plaintiff to justify the present security, or file another prosecution bond by the time this suit is reached at the nest term, or suit stand dismissed.” At the next term of the Court on consideration of the matters alleged in answer to this rule, it was “ adjudged by the Court, that the prosecution bond filed is insufficient, and it appearing that the plain tiff is unable to give other security, counsel having certified that he has a good canse of action, the rule was discharged, and the plaintiffs allowed to continue his suit without further security. A comrpo-mise was made between the parties, and plaintiff had judgment for sixpence and costs. Upon these matters exhibited by the record to his Honor, on motion, it was adjudged that “ the plaintiff recover only such costs as accrued in the ease prior to the terms at which ho was allowed to prosecute in forma pauperis, and that the bill of cost he revised as to all costs which are taxed after said order was made,” from which judgment the defendant appealed to this Court.

J. Baxter, for plaintiff. *

Gaither, and T. 21. Caldwell, for defendant.

Nash, C. J.

Two questions are presented on this record, both upon motions to retax the bill of costs. The original action commenced before asingle magistrate and upon its reaching the County Court, the plaintiff, by order of Court, gave bond and security for its due prosecution. From the County Court it was carried by appeal to the Superior Court, where, on the affidavit of the defendant, the plaintiff was laid under a rule to give other and better security, or justify, or the suit stand dismissed. The plaintiff failed to justify or give other security; ■ whereupon, the Court modified the previous order, and directed as follows: after reciting the failure, the order pioceeds as follows — and the plaintiff is allowed to continue his suit without further security.” *536In giving judgment for the plaintiffs costs, the Presiding Judge considered this order as giving to the plaintiff the right to further prosecute his suit as a pauper, and directed the Clerk to strike from the bill of costs the attendance of the plaintiff's witnesses subsequent to that period. In this there is error. The order did not give to the plaintiff the right of a pauper in che further prosecution of the suit. Ilis Honor might have dismissed the suit irom the docket, if he had thought proper to do so, or continue it as he has done under the prosecution bond filed. The order is that the plaintiff might continue his suit without giving further security, Holder v. Joses, 7 Ired. 191. Tho prosecution bond was not set aside, but was continued, and under it the cause was still prosecuted. That bond being in force, the witnesses of the plaintiff were properly charged in the bill of costs against the defendant, because they were entitled to bo paid by the plaintiff. In other words, the plaintiff having obtained a judgment, and being bound to pay his witnesses for their attendance, as well after the order referred to, as before, he was entitled to his full costs, under the act of 1836, chapter 31, section 79.

In the order directing the Clerk to strike from the bill of costs the attendance of the plaintiff’s witness after the order referred to is erroneous, and must be reversed. The second question will be considered in the succeeding cases. The defendant to pay the costs of this Court. This opinion to be certified.

Per Curiam. Judgment reversed.