
    MONTGOMERY vs. MONTGOMERY.
    1. When an execution against the unsuccessful party in the Appellate Court is retened “no property found,” and execution thereupon issued against the successful party, for the costs occasioned by himself, as provided by the statute (Clay’s Digest, 310, § 25), and returned “ satisfied,” an alias execution may be subsequently issued against the unsuccessful party.
    MOTION to set aside a judgment rendered on a previous day of the term, quashing an execution for costs, which bad issued from tbe Appellate Court. Tbe facts upon which tbe motion was based, appear in tbe opinion.
    John A. Elmore, for tbe motion.
    1. Costs were not given at common law eo nomine, but were in fact always included in the quantum of damages, in actions where damages were given, or entered on tbe roll, as increase of damages, by tbe court. Bacon’s Ab. tit. Costs, A, note a, 484; 8 Bl. Com. 399; Gilbert’s Hist. C. P. 266.
    And after tbe statutes in England giving costs, tbe jury taxed them in their verdict, separately from tbe damages; and when too little, tbe court, on motion, increased them, by ordering tbe officer to tax them. Bacon’s Ab. Costs, L, 539-540.
    And costs were deemed at common law, and after tbe statutes on that subject, as damages. Bacon’s Ab. 540.
    Tbe practice in England now is, for tbe costs to be taxed by tbe officer of tbe court. Bacon’s Ab. 545.
    And no costs are allowed for a witness who has not been paid before the claim is made. Bacon’s Ab. 541; 3 Brod. & Bing. 292.
    The plaintiff sues out or purchases, by paying the stated fees, the original writ. 3 Bl. Com. 273-274.
    And at every stage of the proceedings, where any process is required by him, he in like manner pays for it, as for the original; and this was the practice at common law, before any statutes were passed in relation to costs.
    It would seem, then, that at common law, and since the passage of the statutes, a party was not entitled to costs, unless lie had paid them.
    
    2. The practice in this state is different: and no costs can be collected until the end of the suit, except in particular cases.
    If a plaintiff pays his witnesses, or all the costs he may incur, before the determination of the suit, such costs may be taxed and collected by execution, from the defendant, if the plaintiff obtains his judgment. The costs of the cause are collectable from the unsuccessful party, by execution. Clay’s Dig. §.10, 238; Clay’s Dig. § 12, 601.
    The successful party has the right to an execution to collect the costs. The payment by him of these costs, before the right to the execution has accrued, does not divest him of this right. The payment by him of these costs, after the right to issue the execution has accrued, cannot affect his right to collect these costs, any more than the payment made before; and the payment on the execution makes no difference.
    If it had been intended that such a payment by the successful party should be a satisfaction of his judgment, the law makers would have so said.
    The demands or judgments are distinct, not one and the same. The one judgment is in the name of JaDe Montgomery, who sues by her next friend, against R. B. Montgomery, and others; and until this judgment is paid, there can be no satisfaction. There would be more plausibility in the argument of the opposite counsel, if the statute authorized an execution to be issued at once against either party; but on one state of facts a judgment and execution are given against the unsuccessful party; and on this and a superadded state of facts, a quasi judgment is given, and for a different amount, against tbe successful party, and an execution is given against bim. It is not tbe same judgment, because tbe parties are different.
    It is strange tbat tbe plaintiff, by paying tbis demand, loses rights wbicb be would have retained, if be bad not paid; in other words, that tbe plaintiff, if insolvent, could run bis execution against tbe defendant, but being solvent, and paying, be forfeits tbe right; for it is a forfeiture, in effect, if turned round to bis suit.
    Thomas J. Judge, contra.
    
    1. Tbe statute of 1827 (Olay’s Dig. 310, § 25), authorized an execution to issue against tbe plaintiffs, for tbe costs created by them, on a return of “ no property found” against tbe defendants for tbe costs; tbis having been done, and tbe plaintiffs having paid tbe same, it operates as a satisfaction, pro tanto, of tbe judgment against tbe defendants; and to tbe extent of such satisfaction, no further or other execution can be issued against defendants.
    2. In tbis case, tbe entire amount of tbe costs of tbis court was created by tbe plaintiffs; after a return of “no property found” against tbe defendants, an executiou was issued against tbe plaintiffs, for tbe entire costs, wbicb was returned satisfied ; and wbicb operated as a complete and full satisfaction of tbe judgment against tbe defendants.
    3. But it is asked, “ How can tbe payment of a debt of defendants, for wbicb plaintiffs are bound, operate as a satisfaction in favor of defendants?” We answer; “tbe debt is not thereby satisfied, but the remedy, only, for the collection, is changed ; you cannot now run an execution on a satisfied judgment, for your benefit: your remedy is, to sue at law for its collection; for from a debt to the cleric, it has become a debt to you, by your payment of it for us; and it must be collected as other debts are.” Morrison, Grivban, et al. v. Marvin, 6 Ala. Bep. 797.
   D AEG AN, C. J.

Jane Montgomery, by her next friend, sued out a writ of error against Eobert B. Montgomery, re-returnable to tbis court, to reverse a decree rendered by the Court of Chancery of Lowndes. The decree was reversed, and she was adjudged to recover her cost, accruing in this court. Upon this judgment for cost, an execution was issued against Robert B. Montgomery, the defendant in error, which was returned by the sheriff, “ no property found.” After this return, an execution was issued against the plaintiff in error, under the statute in such cases provided, and the costs were paid by her next friend. After this payment, the plaintiff in error applied for and obtained an alias execution against Rob-bertB. Montgomery; and on a previous day of this term he moved to quash the execution, and to have the judgment for cost satisfied, on account of the payment so made by the plaintiff in error. The motion, not being resisted at the time, was granted, and the plaintiff now moves the court to set aside the judgment quashing the execution, and to discharge the motion previously made.

It is scarcely necessary to inquire, how costs were recoverable, if at all, at common law. They are expressly given by our statute to the successful party, and are taxed by the clerk, who issues the execution for their collection; and when the execution is returned, “no property,” then an execution is directed to be issued against the plaintiff in the original execution, for all the cost created by him in obtaining the judgment. Clay’s Dig. 316. The plaintiff in the execution, therefore, becomes immediately liable for all the cost created by him, upon a return of his execution against the defendant, “no property;” and execution may go against him to enforce this liability. Being then liable, his payment only extinguishes this liability, but does not in any manner affect his rights against the defendant. They remain the same, and an alias execution may be issued to enforce them.

"We all concur in setting aside the judgment heretofore rendered, and in discharging the motion to quash the execution issued in favor of the plaintiff in error against the defendant.  