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.

*222 Defendant’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.