delivered the opinion of the Court:
In the cases of Means vs. Cromwell and Guthrey, 1 Ark. 247, and Clark vs. Gibson as well as some other cases, decided by this court, the failure or omission of a non-resident plaintiff, to file a bond with security for the costs of suit, before he institutes suit in the courts of this State, is held to be matter in abatement only, of which advantage may be taken in the course of the proceeding, at such time only, as of any other legal disability of the plaintiff to sue; but this, as well as every other matter in abatement, existing at the time of pleading to the action in bar thereof, is thereby waived, and the party cannot avail himself of it, either in this court, or the court below, and upon this principle the right of the plaintiff in error, to avail himself of any error in the judgment of the Circuit Court, in refusing to dismiss the suit, on his motion, for the want of a sufficient bond and security í'of costs, and adjudging his plea of auter action pendant insufficient in law to abaté the suit, upon the demurrer of the defendants in error, must be denied. See Dyer vs. Hatch, 1 Ark. 339. And, therefore, as the plaintiff in error subsequently interposed a general demurrer to the petition, which according to the principle recognized by this court, in the case of Clark vs. Gibson, decided at the last term, must be regarded as a plea to the merits of the action, in bar thereof, he cannot now avail himself of any error in the adjudications of the Circuit Courtrin relation either to his motion to dismiss, or his plea in abatement. ■
The only question remaining to be decided, is whether the court below erred in overruling the demurrer to the petition, and pronouncing the final judgment thereupon. The petition conforms strictly to the form prescribed in the statute, and the writing shown upon oyer, corresponds in every particular, with the statement of it in the petition. The objection urged in support of the demurrer, is that there is no averment in the petition that the defendant Albert W. Webb is the same person who executed the obligation upon which the suit is founded, bearing the signature of A. W. Webb, only. This is rather a criticism upon the form prescribed by the statute than a substantial legal objection to the petition, which although it does not in express language contain any specific averment that the obligation therein set forth is the writing obligatory of the defendant, Webb, or that it was made or sealed by him, is a literal copy of the form prescribed by the statute, and explicitly states that the plaintiffs below “ are the legal owners of a writing obligatory to the following effect,” which is copied therein immediately after said statement; which, in our opinion, is substantially an averment that it his deed; for we cannot conceive how it can possibly be a writing obligatory against him, if he never executed, or sealed and delivered it as such. We are therefore of the opinion that the demurrer was rightly overruled* Wherefore the judgment of the Circuit Courtis affirmed with costs*