#### Luke Brennan v. The Academy of Christian Brothers.

Appeal bond—when penal sum is sufficient. An appeal bond is sufficient if the penal sum named therein is double the amount of the judgment appealed from and the amount of the costs accrued at the time of taking the appeal. The costs of taking and approving the bond, entering the appeal, and for making transcript, and postage for sending up the papers, are not to be considered in fixing the amount of the bond.

Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.

Mr. J. H. Taber, for the appellant.

Mr. Charles P. Wise, for the appellee.

Mr. Justice Dickey

delivéred the opinion of the Court:

This was an action by the academy brought against Brennan, before a justice of the peace, wherein judgment was rendered on June 25,1875, against Brennan, for $127.75 and costs.

On the 14th of July Brennan took an appeal to the circuit court by executing a bond, with security approved by the jus*510tice, properly conditioned, in the penal sum of $260. The papers and a transcript were duly certified to the circuit court by the justice. At the October term, 1875, on motion of appellee, the circuit court ordered the appeal to be dismissed for want of a sufficient bond, and Brennan appeals to this court. He now insists that his appeal bond, entered into before the justice of the peace, was in all things in conformity to the law. Appellee contends the bond does not conform to the statute in this, that the penal sum mentioned in the bond is not double the amount of the judgment and double the amount of the costs. The amount of the costs before the justice in no manner appears, except by certain brief memoranda in the margin of the transcript, made by the justice of the peace. From the memoranda it appears that the costs, which had been incurred before the bond was filed, embracing fees of justice, " constable and witness, amounted to $2.10, which, added to the amount of the judgment, makes a sum less than half that named as the penalty in the bond. It is true, that on the margin of the transcript of the justice other costs (for taking the appeal bond, entering the appeal, making the transcript, and for postage in sending the papers,) are entered. It is plain, that in fixing the amount of the penalty of the bond, the costs to be considered are only those which had at that time been incurred. This appeal bond was, in all respects, in conformity with the statute. The court erred in adjudging it insufficient.

The judgment is reversed, and the cause remanded for a trial upon the merits.

Judgment reversed.