#### W. T. COSTELLO v. T. J. PARKER.

(Filed 14 September, 1927.)

Appeal and Error — Actions—Prosecution Bond — Statutes.

A motion to dismiss for the failure of the plaintiff to file a prosecution bond, C. S., 493, 494, made for the first time in the Supreme Court on appeal, will be denied when it has been properly made to appear that plaintiff had filed a proper bond after the issuance of the summons.

Appeal by defendant from Daniels, J., at March Term, 1927, of Gates.

No error.

Action to recover damages for breach of contract by defendant as landlord to furnish plaintiff, bis tenant, commercial fertilizers to be used under crops.

Tbe issues were answered by tbe jury as follows:

1. Did plaintiff and defendant enter into tbe contract alleged in tbe complaint? Answer: Yes.

2. If so, was there a breach of said contract by defendant ? Answer: Yes.

3. If so, what damage is plaintiff entitled to recover of defendant? Answer: $200.

From judgment upon tbe verdict defendant appealed to tbe Supreme Court.

A. P. Godwin for plaintiff.

W. W. Rogers and Walter R. Johnson for defendant.

Per Curiam.

There are no exceptions in tbe case on appeal pertinent to tbe first or second issue. Tbe only assignments of error upon defendant’s appeal to tbis Court are based upon exceptions to portions of tbe charge to tbe jury upon tbe third issue. These cannot be sustained. . Tbe first exception is to a statement by tbe court of plaintiff’s contentions; tbe second exception is to an instruction favorable to defendant.

*222Defendant’s motion, first made in this Court, that the action be dismissed for failure of plaintiff to comply with C. S., 493 or C. S., 494, cannot be allowed. It appears that a prosecution bond, as required by statute, was filed by plaintiff, after summons was issued by the clerk. No motion to dismiss for failure to file the bond at the time summons was issued was made in the Superior Court. See opinion of Clark, C. J., in Rankin v. Oates, 183 N. C., at page 521.

The judgment is affirmed. There is

No error.