Allison v. Stephens , 39 Tenn. 251 ( 1858 )

CaRIJtheRS, J.,

delivered the opinion of the Court.

This is an appeal from a decree for costs against a security for the prosecution of a suit in equity.

John W. Allison filed his bill in the Chancery Court at Shelbyville, against Eli H. Stephens and others, and R. B. Davidson signed the bond for costs. The condition is, “ that J. W. Allison shall successfully prosecute a bill of complaint this day filed by him * * against Eisher & Stephens, or pay all costs incident on failure thereof.”

This bill related, exclusively, to a partnership in the purchase and sale of a drove of mules. The defendants filed a cross-bill for discovery in that controversy, and also bringing up another transaction in relation to a joint purchase and sale of a lot of hogs, being a matter disconnected with the other.

An account was taken in reference to both transactions, and the result was thaG complainant obtained a decree for $76.50. ^But the Court taxed the complainant in the original bill, and his surety with half the whole costs.

The surety appealed, and insists that he was not liable under his bond 'for any costs, because his principal did “ successfully prosecute his suit ” according to the terms of his bond, and by which he was only to be liable for costs in case of failure, on his part, to do so successfully.

That argument would be sound, upon a bond for cost, in. a Court of Law, where the costs are, by express statutory provision, to go with the cause, and necessarily fall upon the failing party. But in c-quity, where it is in the power of the Chancellor to award costs against either party, without regard to the result of the suit, a person becoming surety for 'costs undertakes with reference to that discretionary power, and is subject to its exercise whether his principal succeeds or not. This bond is in the ordinary form, and the obligation incurred by it renders the surety liable to the oi’der of the Court in regard to costs, though the party for which he was bound may have obtained a decree for the full amount he claimed in his bill.

Affirm the decree.