
    Lovelace v. James D. Smith.
    Costs. Amended bill. The surety for costs on the original bill is liable to the extent of the penalty of his bond for costs which accrue on an amended bill filed in the same cause, and such surety is not released by the fact that the court, upon motion, ordered the complainant to execute a new bond with other sureties, which he failed to do, and he afterwards took the pauper oath.
    Code cited: Sec. 3196a.
    No record found.
   Nicholson, C. J.,

delivered the opinion of the court.

By sec. 3196a of the Code sureties on bonds for costs undertake to pay all costs that may be at any time adjudged against their principals, in the event it is not paid by the principals. This includes the costs accruing upon an amended bill, which becomes part of the original bill, constituting one suit. Sureties may require their principal to give other security, or have the cause dismissed.

In this case application was made for dismissal, unless securities were given, and another bond was given and filed by the clerk, but no action was taken on it, nor was the suit dismissed; but at a subsequent term, upon objection to the last-named bond by defendants, the complainants took the pauper oath.

Complainants bill was dismissed, and all the costs adjudged against the original sureties on the first bond. The costs amounted to $303, whereas the penalty of the bond was $250. The second- bond for costs was never accepted and approved by the court, and, therefore, is no part of the records as a bond binding on the parties thereto. When it was afterwards excepted to as insufficient, the court virtually decided against its sufficiency by requiring other security. The fact that complainants afterwards resorted to the pauper’s oath had no other effect than to retain the cause in court. It follows that the sureties on the first bond are liable to the extent of the penalty thereof. The decree for costs will be affirmed to the extent of the penalty; beyond that the judgment will be against complainants alone, and in this respect the costs will be retaxed.  