
    L. C. Willis, and others, vs. William Potter.
    Security for costs indorsed upon the declaration and witnessed by plaintiffs’ attorney, instead of the clerk, is no compliance with an order afterwards made requiring the plaintiff to give security for costs on or before a certain day.
    Compliance with an order requiring security for costs must be in strict oonformity with the Aot of 1839, and the rule of Court.
    BEFORE WITHERS, J„ AT SPARTANBURG, SPRING TERM, 1856.
    The report of his Honor, the presiding Judge, is as follows:
    “ At Spring Term, 1855, the plaintiffs were ordered to put in security for costs on or before the first of September, then next ensuing. No security had been put in after the said order. But before, to wit: on the day of February, 1855, one Hiram Neighbors had signed and sealed an agreement or obligation, endorsed on the declaration, to become liable for costs, except that it was witnessed by Mr. Edwards one of the counsel for plaintiffs, instead of the clerk of the court, as the Act of 1839 expressly requires. It appeared that some interview took place between Edwards and the clerk, when the clerk said he regarded Neighbors as good, and perhaps told Edwards he could witness the obligation. Neighbors had asked the clerk, whether before or after he signed the obligation did not appear, something about the extent of the liability; that is, how much the costs were likely to be. All this was in advance of the order, and therefore purely voluntary. I did not regard security for costs to have been properly and legally put in, and granted the motion to nonsuit the plaintiffs. One of the plaintiffs, Narcissa, sued as a lunatic, by Hiram Neighbors, prochien amy. I was admonished that the sense of the Court of Appeals would be taken.”
    The plaintiffs appealed, and now moved to set aside the non-suit on the grounds:
    
      1. That the security put in, was a substantial compliance with the law.
    2. Because, under the circumstances of the case, the plaintiffs should have been allowed to put in the security nunc- pro tune.
    
    
      Bobo, for appellants.
   The opinion of the Court was delivered by

Munro, J.

By the 22d section of the Act of 1839, concerning the office and duties of clerks of courts, &c., (11 Stat. 77,) it is declared “ Whenever security for costs may be ordered to be given, or may be tendered by any plaintiff, in vacation or in term time, the clerk aforesaid shall witness the signature of the surety,' and shall in the first instance judge of the sufficiency of the security; the form of the undertaking to be according to the rule of Court on that subject.” The rule of court referred to is the 74th, in which the form of the undertaking is prescribed, and it expressly declares, that no other form than the one prescribed shall be regarded as a compliance with the rule, so that there is not the slightest' pretence for saying that the entry of security for costs in this casé was, “ a substantial compliance with the law.” This being the case, the only response that we can make to the appellants’ grounds of appeal, is this — that unless an order requiring a party to enter security for costs, be strictly complied with in conformity with the requirements of the section of the Act and the rule of court referred to, the party neglecting to comply must expect to take the consequences that were so properly visited by the Circuit Judge upon the plaintiffs in this case.

The motion is dismissed.

O’Neall, Wardlaw, Withers, Whitner, and Glover, JJ., concurred.

Motion refused.  