Brown v. Levins , 6 Port. 414 ( 1838 )

COLLIER, C. J.

The counsel of Savage, mié of the defendants in error, has moved to dismiss the writ of error, for .a misjoinder of defendants. Upon looking into the writ, we find the objection well taken in point of fait,, and accordingly direct the dismissal. But it has been questioned, whether-the judgment for costs, should ‘beié idered against the plaintiff’s only, or against them and their sureties in the bond to prosecute the writ of en or to effect. The statute authorises this court to render judgnlént against the principal and surety in the. bond, “ in case of dismission or discontinuance of the cause.” Such judgment, however, can only be rendered where the bond is given in conformity with 'the act. in the present case, the directions of the statute, 'which require the bond lo be made payable to the “adverse party,” have been departed from. By the terms “ adverse party,” we are to understand all who are made defendants in this court. Here the bond is executed in favor of. Cavago alone, and according to the rule laid down, there can bo no judgment against the sureties. We do not mean to be understood that the bond is void, but on-iv that it does not conform to the statute so as to subject it to tiie statute remedy; yet we think Savage is entitled to his common-law remedy upon it, against the plain - tiff’s, and may recover damages for a breach.