
    Frary against Dakin.
    Where a wit of error is brought to this court, on a judgment ob* mined in a court fii.m?(i.elothe1Srt<* tlle plaintiff in error not bound to pay the costs in error, on the foreln<theiajud"- ™<¡ in'ihe°ermrt uffTa’^remoral ^'¡^Movuey toí tí!? fnifawit of'ercommencement1 attorney rcsponsihle fur the costs; nov does the case come within the meaning of the 1-ilh rule of January term, i 799, as to filing security for costs.
    RODMAN, for the defendant in error, moved that the . plaintiff s attorney pay the costs on error, in the above • , _ . - , YT . cause, amounting to 164 dollars and 94 cents, lie read an affidavit, stating, that a judgment had been obtained in the mayor’s court of Hudson, in favour of Dakin, against Fraru, for 341 dollars and 81 cents; and that ° J1 before the judgment was rendered, the defendant below™ J , . removed out of the’state, mio Canada, where he has since resided, and that the plaintiff’s attorney afterwards brought the writ of error to this court, without the knowledge of the plaintiff, and the judgment below was affirmed by this court, and the plaintiff’s attorney refuses to pay the costs in error.
    
      F. Williams, contra,
    read an affidavit, stating that since the affirmance of the judgment, a suit had been brought against the special bail in the court below, and a judgment recovered for the amount of the original iudgment, 7 with interest and costs in the suit below, which had been paid. That the writ of error was brought with the full knowledge and consent of the plaintiff, who resided in Hudson, when the suit was first commenced.
   Per Curiara.

This is not a case coming within the spirit of the 14th rule of January term, 1/99. That rule contemplates a suit originating in this court. The' plaintiff in error came to this court, not to enforce, a demand, but to avoid a judgment which he supposed had been erroneously given in the court below. Although the bringing a writ of error js considered as a new action, yet it is not the commencement of such a suit as comes witfiin the ride by which the attorney can be made responsible for the costs. It never has been supposed that in a, case like this, a non-resident plaintiff was obliged to file a bond; and it ¡s qply when a bond ought to have been filed, that the attorney is answerable for the costs. If there had been an application to the court to stay the proceedings on the writ of error, it is probable the proceedings would have been stayed, until security for costs had been given. The motion is denied'  