
    HINSON vs. PRESLOR.
    [MOHOS TO DISMISS APPEAL.]
    1. Security for costs held insufficient.- — An obligation, on the part of the appellant’s surety, to pay the costs of the appeal “if the judgment is affirmed”, is not a compliance with the statute. — Code, § 30-11.
    Appeal from the Circuit Court of Butler.
    Tried before the Hon. C. W. Rapiee.
    The clerk certifies, in his final certificate appended to the transcript, “ that the said John T. Henderson,” for whose use the suit was brought, “ has given bond, with John S. Wright, security, conditioned that, if the judgment be affirmed, he will pay the costs of the Supreme Court and of the Circuit Court”; and on this certificate the appellee now moves to dismiss the appeal.
    
      Nat. Haréis, for the motion.
    Watts, Judge & Jackson, contra.
    
   GOLDTHWÁITE, J.

In cases of appeals, where no bond is given to supersede the judgment or decree, the Code (§ 3041) requires that the appellant shall give security for the costs of the appeal. The judgment in the present case was not superseded ; and the obligation, which the surety of the appellant has entered into, only binds him to pay the costs of the appeal in the Supreme Court, in case the judgment of the court below is affirmed. This is not a compliance with the statute, since the surety would not be bound to pay the costs of the appeal if it was dismissed, as it might be if not taken within the time prescribed by law, as well as in other cases.

The motion to dismiss must accordingly prevail.  