¶1delivered the opinion of the Court.
¶2This was an action of debt brought by Poteet against Boyd, on a bond for the 'dissolution of an attachment. Boyd, who was the surety in the bond, pleaded non estfactum, and gave notice of special matter; which *161was, that an appeal to the Supreme Court from the judgment rendered on the attachment suit had been prayed and allowed.
¶3There is no assignment of errors in this cause, and upon an examination of the record we are satisfied that the judgment is correct. The only plea was non est factum, which was disposed of by reading the bond declared on. The truth of the breach of the condition of the bond was not denied, and the notice of special matter was insufficient, as it did not aver .that the appeal was pending in the Supreme Court, and undetermined at the commencement of the suit. The contrary is the fact as appears by the record.
¶4The judgment is affirmed, the other Judges concurring.