Judgment reversed.
Cade made a motion to retax certain costs which had been taxed against him.- It was admitted that the facts stated and the allegations made in the motion were true. The motion was overruled, and' Cade excepted. The allegations of the petition were as follows : Bichard Cobb was convicted of receiving stolen goods, and sued out a writ of error to the Supreme Court, petitioner becoming security upon his bail-bond. The Supreme Court affirmed the judgment, .and Cobb was taken out of the hands of petitioner by the sheriff, turned over to the principal keeper of the penitentiary, and commenced tQ serve out the sentence imposed upon him and continued to do so until he was pardoned by the Governor. Notwithstanding this a forfeiture nisi was entered upon the bond and made absolute for the cost of the forfeiture. Petitioner avers that he was not and is not liable for any cost upon the forfeiture, and that notwithstanding he may not be liable for any such, costs, the *462clerk has taxed him with the cost of the forfeiture, and the whole cost of the criminal case against Cobb, and has issued execution against him for such costs. lie avers that he does not owe and is not liable for any cost, but if he is liable for any it is the cost of the forfeiture and not the cost of the criminal case.
C. J. Thornton, for plaintiff in error. A. A. Carson, solicitor-general, by J. H. Worrell, contra.