
    No. 424.
    J. W. Demarest v. W. J. Beirne.
    1. The surety upon a devolutive appeal bond secares the appellee against costs for which the latter is or may become liable; it does not extend to costs which, under the Stamp Law, must be paid by the appellant.
    2. The costs of transcript must bo paid at the time of appeal' by the appellant, mul the costs of the clerk of the Supreme Court must be covered by cash deposit, or by special bond. Such costs, therefore, are not covered by the bond in a devolutive appeal.
    y. The surety upon such a bond, who has paid costs of the character last described, is not entitled to a credit, for the amount of such payments, when sued upon his bond.
    
      Appeal from Civil D-istrict Court, Division D. Rightor, J.
    
    
      
      Singleton, Browne & Choate for plaintiff, appellant.
    
      Andrew J. Murphy for defendant, appellee.
   Kelly, J.

This is a proceeding by rule against W. S. Benedict, Esq., as surety of the defendant, W. J. Beirne, upon two bonds of devolutive appeal, one for $200, and the other for $100. Both judgments appealed from were affirmed, and it is not disputed that the surety’s liability on both bonds was fixed before the rule was taken, but the defence is, that both bonds were fully discharged by payment by the surety (before the rule on him was taken) of costs secured by the bonds to the full amount thereof. It is understood to be admitted that such is the case as to the bond for $100; but as to the $200 bond, it is insisted that the payments of costs by che surety, relied on as payments in discharge of his liability on the bond, are not entitled to be so considered, and that he is still legally liable to the plaintiff for the whole amount of that bond. There was judgment below for the plaintiff for twenty-six dollars and costs of the rule, and from this judgment he has appealed.

The case comes before us on an agreed statement of facts, which presents for determination a single question of law, and that is, whether a surety’s liability upon a devolutive appeal bond for costs extends to costs of the transcript of appeal, and to the costs of the Clerk of the Supreme Court, and may be discharged by payment by the surety of cost3 of such character.

The surety on an appeal bond is the surety of the appellant, who is principal in the bond, which is given for the security of the appellee; and there can be no liability of the surety on the bond for anything for which the principal in the bond may not become liable to the appellee; and the surety’s liability attaches only when the liability of the principal attaches, and as ancillary thereto. In no event can an appellant become liable to an appellee for cost3, which the latter is neither required to pay or to become liable for, and of this character are costs of transcripts of appeal,which are to be paid for, in the Parish of Orleans, by the appellant in stamps of the judicial fund; nor for the costs of the Clerk of the Supreme Court, which are to be paid or secured by the appellant to the clerk, and for which, no more than for the cost of the transcript, can any liability of the appellant to the appellee arise to which the security of the appeal bond could attach. It follows, therefore, that payment by a surety on an appeal bond, for the party to the suit, of costs of that character, as to which no liability to the adverse party in any event can arise, are not entitled to be credited as payments in discharge of indebtedness of the appellant to the appellee for costs paid or incurred by the latter, and to secure the paj'ment of which the bond was given. 36 La. An. 190; 4 La. An. 3; C. P. 575, 578.

It is therefore ordered, adjudged and decreed that the judgment appealed from herein be amended so as to increase the amount which the plaintiff, J. W. Demarest, is decreed entitled to recover of the defendant, W. S. Benedict, from twenty-six dollars to two hundred dollars, with interest from judicial demand and costs, and that as thus amended the said judgment be affirmed; the costs of the appeal to be paid by the appellee.  