By the Court,
Although there may have been a common feeling between the parties to the record in
Motion granted.
(a).
The rule was the game, it seems, before the statute. (See Norton v. Rich, 20 Johns. Rep. 475; Waring v. Baret, 2 Cowen’s Rep. 460; Schoolcraft v. Lathrop, 5 id. 17; Hopkins v. Banks, 7 id. 650, 653; Canby v. Ridgway, 1 Binn. Rep. 496; Miller v. Adsit, 18 Wend. 674.)
As to the circumstances which will render one chargeable with having brovght the action, and who may be deemed an assignee or person beneficially interested, within the meaning of the statute, and the previous rule on this subject, see Whitney v. Cooper, (1 Hill, 629;) M’Hench v. M’Hench, (reported in the text;) Miller v. Franklin, (20 Wend. 630, 632;) Bendernagle v. Cocks, (19 id. 151;) Miller v. Adsit, (18 id. 672, 674;) Jordan v. Sherwood, (10 id. 622;) Colvard v. Oliver, (7 id. 497;) Norton v. Rich, (20 Johns. R. 475;) Waring v. Baret, (2 Cowen’s Rep. 460;) Schoolcraft v. Lathrop, (5 id. 17.)
The right of applying to enforce the liability has usually been exercised by the defendant in the action, though the nominal plaintiff has also been allowed to move. (Colvard v. Oliver, 7 Wend. 497.)
In Norton v. Rich, (20 Johns. R. 475,) there was a rule for an attachment against the assignee in the first instance; it appearing that the taxed bill had been demanded of him. (See also Waring v. Baret, 2 Cowen, 460, 1, and note (a.))
A party defending in the name of another cannot be made liable to the plaintiff for costs; and this rule applies as well to the case of a landlord defending an ejectment brought against his tenant, as to other cases. (Ryers v. Hedges, 1 Hill, 646; Livingston v. Clements, id. 648; Miller v. Adsit, 18 Wend. 672.)