delivered the opinion of the court.

John Keenan having obtained judgment against William Smith, before a justice of the peace, the latter appealed to the circuit court. When the cause was called for trial, both parties appearing, the counsel for the plaintiff moved to dismiss the appeal, for the reason that there was no sufficient bond — the one given by the appellant having been executed to Joseph, instead of John, Keenan. The defendant, by his counsel, thereupon asked and obtained leave of the court, until three o’clock, to perfect the bond. The record shows that the bond which was filed under this permission was also made payable to Joseph Keenan but the bill of exceptions states that the bond was not approved by the court, because it was proven that the security was insolvent, and that the plaintiff thereupon renewing his motion to dismiss the appeal it was dismissed accordingly, and to this the defendant excepted. The record further shows that on the same day a motion was made to reinstate the cause upon the docket, and grant the defendant a new trial for the following reasons:

1. The court erred in dismissing the appeal, for any defect in the appeal bond, after the plaintiff had appeared to the appeal.

*5312. Because the first appeal bond filed in this cause is not defective, but is good and sufficient in law.

3. Because the court erred in requiring the defendant to file an additional appeal bond.

4. Because the court erred in dismissing the appeal because the security in the second bond was not solvent.

5. Because the court erred in dismissing the appeal — refusing the defendant permission to file an additional bond.

6. Because the defendant, not being aware of the insolvency of Antoine Reibhe McNair, the security in the second appeal bond, was taken by surprise by the evidence introduced by plaintiff to prove the insolvency of said McNair — and

7. Because the court erred, as said defendant avers, and is ready to prove, the said McNair is solvent, and is abundantly good security for the amount of the said bond.

The statements contained in the two reasons lastly assigned being supported by the affidavit of the defendant, and the motion overruled, the defendant excepted and brings the case to this court.

The bonds to Joseph Keenan were clearly invalid and insufficient. For all the purposes of this suit, they might as well have been made payable to any other person. It was therefore a matter of favor (rather than a requisition, as here complained of,) that the court allowed time to file a proper bond, and when, instead of doing so, one is again filed in a wrong name and with insufficient security, we think it was no breach of the comity of the court, but a proper assertion of its dignity, and a proper economy of its time, to dismiss the appeal.

As to the complaint that the defendant was taken by surprise respecting the insolvency of his new security, it is sufficient to answer that the leave granted him by the court to prepare and file a sufficient bond, implied of course that he would neglect to do so at his peril, and should have therefore prompted him to satisfy himself beforehand respecting all the requisites, and especially, if even a doubt could be started respecting the main question of the surety’s sufficiency, to have his witnesses present at the hearing of the motion.

Concerning the time when the motion to dismiss the appeal was made, as there has been shown no direction of law or rule of court requiring such motions to be filed before the case is called, the presumption is of course in favor of the regularity and consequent correctness of the court below. Because the parties had appeared to the action, when it was called, and before any jury was'enpannelled, could certainly con*532stitute no reason why amotion to dismiss the appeal could not be made, renewed, and .finally determined, as it was.

Upon the whole case, therefore, the judgment of the circuit court is affirmed.