delivered the opinion of the court:
The first section of the act, (Rev. Stat. 211,) relating to costs, provides, that “ when the plaintiff or person, for whose use the action is commenced, shall not be a resident of the State, the plaintiff or person, for whose use the action is about to be commenced, shall, before he institutes such suit, file, in the office of the Cleric of the Circuit Court in which it is to be commenced, the obligation of some responsible person, being a resident of the State, by whom he shall acknowledge himself bound to pay all costs which may accrue in such action;” and the second section declares, “ that if such action shall be commenced, without filing such obligation, the Circuit Court shall, on motion, dismiss-the same, and the attorney for the plaintiff shall pay the costs accruing thereon.” It is admitted upon the record that both Owings ond Farrelly were non-residents at the time this suit was instituted. The bond filed was conditioned, that if the said Owings “ shall maintain his said action, or if judgment shall be given against him, he shall well and truly pay all costs of suit, which he shall be liable to pay,” then to be void. -The Circuit Court correctly decided that the condition did not conform to the statute, inasmuch as the parties were not bound to pay “all costs which may accrue in the said action.” There is a material difference between the condition of the bond required by the statute, and the one filed. By the former, if judgment was obtained by the plaintiff, and the costs could not be made of the defendant, he and his security would be bound for it. In the latter, in the event that “he could not maintain his action, or that judgment was given against him.”
One object of the Legislature in requiring the bond to be conditioned for the payment of “ all costs which may accrue,” is to secure the officers of the court; for though judgment might be against the defendant, yet if the costs could not be made out of him, such a bond as the plaintiff filed would, by no means, fulfil that object. There can be no objection as to the time at which the motion was made, for, previous thereto, a writ of scire facias had been issued, and executed on the administrator of Oakley, and a motion made by the plaintiff’s counsel to revive the suit against him.'
The bill of exceptions does not, in the present instance, appear to have been tendered at the trial; nor were the exceptions taken and reserved while the matter was passing in the court; but to have been drawn up and signed several days after the case had actually been decided, and when there was no suit properly before the court. It cannot, therefore, be considered as forming any part of the record, and must in accordance with the principles laid down in case of Lyon vs. Evans, 1 Ark. 359, be entirely disregarded. The judgment of the Circuit Court, must, therefore, be affirmed with costs.