
    Samuel Sidner et al. v. Juliet Adexander.
    1. Where several damages are assessed on several causes of action, a judgment for the aggregate amount of damages may be reversed as to part, of the causes of action, and affirmed as to the rest.
    2: In such case, where error is assigned to all the causes of action, and the judgment is reversed as to part, and affirmed as to the residue, the costs-on error should, under section 521 of the code, be equally divided between the parties.
    S. Where the judgment is divisible, and a reversal is ashed only of so much as is erroneous, whether the plaintiff in error should not recover his-costs on error, qucere.
    
    Error to the District Court of Madison county.
    The plaintiffs in error, who were defendants below, were sued on an official bond. The petition contained statements ■of two causes of action, each of which was demurred to as not stating facts sufficient to constitute a cause of action. The demurrers were overruled, and issue was joined on the second cause of action. The record shows the amount found due on each cause of action. A geueral judgment was rendered for the entire amount.
    The plaintiffs in error assigns error to both causes of action, and sought the reversal of the entire judgment.
    The district court affirnaed the judgment. On error this court held that the statement of the first cause of action was bad, and that the demurrer to it ought to have been sustained; but that there was no error in the amount found ■due on the second cause of action. The case is reported, .ante, p. 380.
    A question is now made as to the taxation of the costs.
    
      James L. Bates, for plaintiff in error.
    
      Harrison, Olds $ Marsh, for defendants in error.
   By . the . Qourt :

Section 527 of the code provides that, ■“when a judgment or final order is reversed, the plaintiff' in error shall recover his costs, and when reversed in part .and affirmed in part, costs shall be equally divided between the parties.”

The question is whether, under this section, the judgment is to be regarded as affirmed in part and reversed in part, or as being wholly reversed.

A similar provision to that cited above from the code is found in section 107 of the Practice Act of 1831 (29 Ohio L. 58; Swan’s Stat. 681).

In Williams v. Cutting (2 Ld. Raym. 825), it was held that “if an entire judgment is given for damages upon .several counts, and one of the counts is ill, the judgment •shall be reversed in toto, though the jury found several damages upon each count.”

But the rule recognized in subsequent cases is to the •effect that where judgment is given upon two counts of the ■declaration, one of which, is bad, the court may reverse it as to that count, and affirm it as to the other count, if several damages are assessed upon each count. 2 Tidd’s Prac. * p. 1179; Bellew v. Aylmer, 1 Str. 188; Everard v. Patterson, 6 Taunt. 645; s. c. 2 Marsh, 304, 308.

In the present case, the record shows the amount found •due on each of the causes of action set forth in the petition. The amount assessed on each cause of action, and carried into the judgment can be separated, and the judgment reversed as to the first cause of action stated in the petition, •and affirmed as to the second.

.The plaintiffs, by their petition in error, assigned errors as •to both causes of action, and sought the reversal of the entire judgment. In such case, where the judgment is divisible, it may be reversed in so far as it is erroneous, and affirmed .as to the residue; and the costs on error should be equally ■divided between the parties.

When, however, the judgment is divisible, and a reversal is asked only of so much as is erroneous, whether the plaintiff in error should not recover his costs on error, ■quaere.  