The defendant moves that the plaintiff be required to give surety for costs. It is conceded that the plaintiff is too poor to procure a surety. The defendant, nevertheless, insists that under Gen. Stat. R.I. cap. 195, § 26, he is entitled to an order in accordance with his motion. We do not think that the statute, though peremptory in its terms, requires us to make the order in a case like the present. Such an order would be of no benefit to the defendant unless we should dismiss the suit for non-compliance with it. This the statute, Gen. Stat. R.I. cap. 195, § 27, does not compel us to do, but plainly leaves in our discretion. We certainly should not dismiss the suit, if it clearly appeared that the non-compliance was because of the plaintiff's inability on account of poverty. To dismiss the suit in such a case would practically *Page 245 amount to a denial of justice and would be inconsistent with the Constitution. Constitution of R.I. Art. 1, § 5.
We think, however, that before the defendant is put to the expense of making his defence, the plaintiff should be required to satisfy us, by affidavit or otherwise, that he has probable cause of action.
Motion dismissed.