There is a motion to dismiss the appeal in this case. The condition of the bond, the appeal being devolutive, is as follows, viz :
“Now, therefore, the condition of the above obligation is such that if the said William Saunders shall prosecute his said appeal with effect, or shall pay all the costs of this appeal, then, and in such case, the above obligation to be void, otherwise to remain in full force and virtue.”
It is objected that the law requires the bond to be given to secure the payment of the costs both of the Supreme and inferior court; And so it has been adjudged. Byrne v. Riddell, 4 An. 3; Driggs v. Ballard, 3 An. 135: Code of Practice, 578.
An attempt has been made since the continuance of this case last year to cure this delect. ' It appears by a supplemental transcript presented at the present term, that in August last the appellant applied to the District Judge to present an additional ajipeal bond, which was received by the District Judge by tho following' order, in the case entered on the minutes:
“ Martha Jordan et al. v. William Saunders et al.—Petition filed by Messrs. Fort & Duncan for a new appeal bond, and asking for a supplemental transcript to the Supremo Court, whiclj was ordered.”
This attempt to cure the defect in the original bond cannot avail the appellant. His appeal must bo tested by the state of facts existing at tho time it was filed, and, his bond being defective, it cannot be cured by the substitution of another. Dunlap, Moncure & Co. v. G. R. Price, 10 An. 155.
The dismissal of the appeal at this late clay, as appellant suggests, may operate as a very great hardship upon him, but the authorities are in point, the motion to dismiss being duly filed at the last term of the court, and wo feel constrained to give them their application in the present case.
It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed at the cost of the appellant.
Spofford, J., having been of counsel, recused himself.