
    Strance and Priest v. Ellis.
    Where the judgment before a Justice was for the defendant, and an appeal taken, it is sufficient, if the bond be conditioned, that, “if the judgment be affirmed, or the defendant recover more,” &c.
    ERROR from the Circuit Court of Cape Girardeau county.
   M’Girk, C. J.,

delivered the opinion of the Court.

This was a case before a Justice of the Peace, and judgment there for the defendant, Ellis. From this judgment, the plaintiff appealed to the Circuit Court, and the Circuit Court dismissed the appeal, on the ground,that the appeal bond did not sufficiently pursue the direction of the statute, and gave judgment for costs against the appellants. The bond in the condition says, if the judgment shall be affirmed, or if the defendant shall recover more, then the plaintiff shall pay costs, &c. The form of the bond given by the statute is, that if the judgment of the justice is affirmed, or if the plaintiff shall recover less, &c. The statute has not been literally pursued, but the substance has. Here the plaintiff recovered nothing. Why, then should he put in the bond, that if he recovered less than that, he should pay the costs? This could effect no sensible object. But, in this case, the defendants have recovered costs ; and the bond is, if more than costs are recovered by them, the plaintiff shall pay the costs; and if they recover the costs again, then the judgment may be considered as affirmed, and the bond secures them in that event; so, at all events, the defendants are secure of their costs.

This judgment is, in our opinion, erroneous, and is reversed with costs, and the cause is remanded to the Circuit Court, and that Court is directed to reinstate the appeal and proceed to try the same.  