Clerk's Motions for Judgments for Costs

Deaderick, J.,

delivered the opinion of the court.

By see. 3204 of the Code, all costs accrued at the instance of the successful party, which cannot be collected out of the other party, may be recovered, on motion, by the persons entitled to them, against the successful party.

By secs. 3196a, 31966, and 3196e, of Thompson & Steger’s Statutes, whenever judgment is rendered against a principal on his bond for costs, it may also be rendered against his sureties.

Formerly, at law, the plaintiff’s successful prosecution of his suit to judgment discharged the undertaking of the surety on his prosecution bond. Kennedy v. Jack, 1 Yer., 82. But the act of March 22, 1860 (Thompson & Steger’s Statutes, sec. 3196 a, &c.), provides that the surety’s undertaking shall he “ to pay all costs that may he at any time adjudged against his principal.”

The case of Garren v. Breed arose after this act, and was correctly decided in the lower court, Jko. Alex. Campbell, J., in conformity with the act; but in the supreme court the act was wholly ign,ared. Nor does the act seem to have been brought to the attention of the court in Williamson v. Leon, Burge & Co., 7 Heis., 117, where, on p. 120, the question of the surety’s liability was waived, but reference was made to Carren v. Breed. The case went off on the surety’s want of notice of the motion, to which, six months having expired, the court held 'that he was entitled.

The clerk can recover only his own costs. Stewart v. McCuistion, 1 Heis., 428. Bepobteb.

These provisions entitle a party to whom costs are Hue, to a judgment against the successful party, and his surety, for costs accrued at his instance, when the same cannot be made out of the adverse party.

And the return by .the sheriff of an execution against the losing party indorsed, nulla bona, &c., is sufficient evidence that nothing can be made.

The clerk is therefore entitled, in the cases on the list furnished, to judgments against the successful parties, and their sureties, for the amounts of his own costs, when the returns of the sheriff on the executions show that nothing can be made out of the losing parties.