
    Adaline L. McKenzie v. Roswell G. Horr.
    The surety of a non-resident plaintiff, for costs, under section 543 of the code, is only liable for such costs as the defendant may recover against the plain* tiff, and for the costs of the plaintiff’s witnesses.
    Error to the district court of Lorain county
    
      The original suit was brought by the plaintiff in error, against the defendant in error, in the court of common pleas of Lorain county, upon an agreed statement of fa?5ts. It appears that the present plaintiff was sued before a justice of the peace by C. D. Williams, and that on her appeal the case was taken to the court of common pleas, where Williams, the plaintiff, being a non-resident, was ruled to give security for costs, in one hundred dollars, which he did with Mark S. Sibley as surety. The obligation was conditioned that the plaintiff should “ pay all legal costs which shall be adjudged against him as plaintiff in such suit.” A verdict was finally rendered in favor of the plaintiff in error, defendant in that suit, against Williams, the then plaintiff, and by the judgment entered on the verdict she recovered her costs taxed at ninety-seven dollars and seventy cents. The costs taxed to the plaintiff, Williams, amounted to thirty-nine dollars and twelve cents, making'the aggregate amount of the costs, of both parties, one hundred and thirty-six dollars and eighty-two cents.
    On the 5th of December, 1861, Mark S. Sibley paid to the defendant in error, the clerk of said court, the sum of one hundred dollars, in satisfaction of the bond he had given as surety for costs, and the same was canceled. The money so received by the clerk was applied by him as follows: upon the costs of the plaintiff, Williams, $36.37, viz : clerk’s fees, '$12.05 ; sheriff’s, $2.50 ; witnesses, $17.80, and to depositions, $4.02; and upon the judgment so rendered in favor of Adaline L. McKenzie, the plaintiff in error, for her costs, the sum of $63.63, viz: clerk’s fees, $9.45; sheriff’s, 15.05; and witnesses’, $39.13; leaving unpaid of her judgment for costs the Sum of $34.07, and of the costs due from Williams the sum óf $2.75.
    The clerk, on demand made for the purpose, refused to apply any part of the money received from Sibley to the payment of the $34.07 of the unpaid costs of the plaintiff in error, or to pay the same to her, claiming that the money should be first applied to satisfy the unpaid costs taxed to Williams.
    The court of common pleas adjudged that so far as the money was applied to the payment of the fees of the plaintiff’s witnesses, it was correctly applied; but that so much thereof as was retained by the defendant in error, and applied on his own fees, taxed against Williams, should be applied to the payment of the costs of the plaintiff in error, and accordingly so ordered. Horr, the present defendant in error, filed a petition in error in the district court, to reverse the order and judgment of the common pleas. The district court found, .that the money had been properly applied by the clerk, and reversed the judgment of the court of common pleas. The object of the present proceeding in error, is to reverse the judgment of the district court.
    
      Bliss &¡ Johnston, for plaintiff in error.
    
      JR. Cr. Horr, defendant in error.
   By the Court.

I. The judgment of the district court, alone, is before this court for review, in the present proceeding.

By the fourth section of the “ act to regulate the practice of the judicial courts,” passed March 8, 1881, and usually known as the practice act (Swan’s Stats, of 1841, p. 651; 3 Chase’s Stats. 1674), it was provided that an indorser for costs “shall be held and bound for the payment of all the costs that may be adjudged against the plaintiff, both in. the common pleas and supreme court.” This would include only such costs as the defendant might recover of the plaintiff, by the judgment of the court.

By the “ act to regulate the taxation of costs,” passed March 9,1835, this liability was enlarged. The seventh section provided that the indorser for costs, under the provisions of the fourth section of the practice act, “ shall be holden for the. plaintiff’s costs, to his witnesses or other persons entitled to fees from him, whether the plaintiff obtained judgment or not.” (Swan’s Stats, of 1841, p. 406, and Curwen, vol. 1, p. 208.)

This section was repealed by section 106 of the code (S. & C.’s Stat. p. 1133), and the- remainder of the act left still in force (S. & C.’s Stat. p. 643-4-5.)

Prior to the adoption of the code, the liability of a surety for costs was prescribed by sections four and seven of the acts above referred to. On repealing the practice act, and the seventh section of the act of March 9,1885, the code, in section 543, enlarged the liability imposed by section four of the practice act, by embodying so much of section seven of the act of 1835 as extended the benefit of the security to the plaintiff’s witnesses, but omitted the remainder which made provision for other persons entitled to fees from the plaintiff.

The section of the code referred to provides that “ he (the surety) shall be bound for the payment of all costs which may be adjudged against the plaintiff in the court in which the action is brought, or in,any other to which it may be carried, and for the cost of the plaintiff’s witnesses, whether the plaintiff obtain judgment or not.” Erom the terms of this section, especially when viewed in the light of the prior laws from which it is formed, it is clear that, the extent of the liability. of a surety, under the statute, is, for the costs which the defendant may recover against the plaintiff, and for the costs of the latter’s own witnesses, without regard to the judgment that may be rendered.

II. It is claimed by the clerk that the obligation of the surety was invalid, inasmuch as it limited his liability to a specific sum. Without intimating that this point is well taken, it is sufficient here to say, that as the surety paid the obligation, and makes no such question, the clerk can not raise the^inquiry to justify an appropriation of the money contrary to the statute.

III. We do not mean to say that the court of common pleas did not err to the prejudice of the plaintiff in error; but, that judgment she has taken no steps to reverse. It was reversed by the district court, on the petition of the clerk, the present defendant in error, and it is only this judgment of reversal that her present petition in error brings under review before this court.

The judgment of the district court is reversed, and that of the common pleas affirmed.  