
    M’Kernon & Demoss vs. John Hall.
    Jackson,
    March, 1830.
    Where the defendant, (in a suit before a magistrate) proves a set off, larger in amount than the plaintiff’s demand, he is entitled, by the act of Í815, ch. 53, to judgment for the excess over plaintiff’s demand.
    In such case, if the plaintiff appeal to the county court, and thence to the circuit court, where a large judgment is rendered against the plaintiff, the securities in the appeal from the county to the circuit court, are liable for the costs, but not for the amount of the judgment.
   Opinion of the court delivered by

Judge Catron.

George S. Miller warranted John Hall before a justice of the peace for Carroll county, and obtained judgment against him. From this j udgment, Hall appealed to the county court where he obtained judgment for seven dollars against Miller, under the act of 1815, ch. 53, providing, that where the defendant, before a justice, pleads a set off, he may have judgment against the plaintiff, if his account is proven to be the larger. The verdict for seven dollars in the county court was released by Hall, and judgment given for costs only. From this verdict and judgment, Miller appealed to the circuit court, and gave M’Kernon and Demoss as his securities, to prosecute the appeal with effect. On the trial in the circuit court, judgment was given for the defendant Hall against Miller for fifty dollars and costs. At the next term of the circuit court (April 1829,) on motion, the court gave judgment against the securities of Miller, M’Kernon and Demoss for the fifty dollars and costs of that court and the court below. The securities have prosecuted an appeal in error to this court.

Huntsman, for plaintiffs in error.

Gillespie, for defendant in error.

Previous to the passage of the act of 1815, the securities of a plaintiff in action, when he appealed from a county court judgment, were only bound for costs, 1794 ch. 1, sec. 63. The appellant in this case stands upon the same footing, as tho’ the action had been commenced in the county court, 1807, ch. 81, sec. 4. The securities are bound that appellant prosecute his appeal with effect, and perform the judgment of the superior court. That court could only give judgment for the costs of the courts below, by the act of 1794, which is unaltered. The bond could not cover the judgment of fifty dollars, but the costs of the courts below, only. Securities can be reached alone, by strict law, not by equitable construction.

The judgment of the circuit court must be reversed, and judgment rendered for the costs of the court below, against M’Kernon and Demoss.  