264 MONTGOMERY VS. CA RPENTER. {5 MONTGOMERY VS. CA RPENTER. . A bond for costs Is no part of the record, unless made so by exceptions. Tilts was an actiodn of debt, by petition, determined in the Jack-son Circuit Court, in May, 1843, before the Hon. THOMAS JOHNSON, one of the circuit judges. A bond of C. H. Moore, for costs, is copied in the transcript, marked filed before the suit commenced, in the penalty of $100. Tie defendants moved to dismiss, for want of sufficient bond. MotML sustnined, and exceptions. The exceptions do not set out the bond, or show that there was any proof as to tfie plaintiff's non-residence; but the record states that "it appeared to the Court" that he was a non-resident when the suit commenced. Suit - dismissed, and appeal. The case was argued here by Pike & Baldwiu, for appellant, and W. Byers, contra. By the . Court, LACY, J. The court below dismissed the suit for want of a sufficient bond Tor costs. In excepting to the opinion, the
A K 265 Plaintiff has not set out the bond. There is copied in the transcript a goo,: h n nd, and Oa f is marked filed before the commencement of . the action. Are -m-v bouna judially to take notice of tli,s bond at, iorming part of the record? The de6.ration 9nd- writ are certainly matters of re-cord, and so it has been expressly naled by this Court iO the case of Pike vs. Lenox, 2 Ark-. Rep. 14, and Renner vs. Reed, 3 Rep. 413. Whatever proceedings or facts the law or practice of -the Court requires to be enrolled as a. perpetual memorial or judical history of the case constitutes and forms a part of the record. It is. true that . a non-resident cannot have either a declaration or writ without first filing a bond to secure the defendant and -officers of court in their costs. In such a case the statute regards the bond for costs as a necessary preliminary to the commencement of the action, and not as necessarily constituting . a part of the judicial history of the case, so. incorporating itself with the rolls of court as to be and remain a perpetual memorial and testimony of the proceeding. In this case the plaintiff, in taking his exception to the opinion of the Court in dismissing the suit, has wholly failed to place the bond for cost on the record, and therefore we cannot look into it, and see whether it be good or not. There being no other error assigned, and the presumption being in favor of -. be court below, of course its judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.