Yates v. Collins ( 1857 )

Wheeler, J.

It is a clear principle, that the liability of a surety can not be extended beyond the actual terms of his engagement-. This principle is applicable generally to all cases -of suretyship, and embraces the case of the sureties in an appeal •or certiorari bond. They are not parties to the suit, and so liable for costs; but their liability arises upon their undertaking for their principal. To the extent of the obligation of their bond, therefore, they are liable, but not beyond it. Though costs may be said to follow the judgment as an incident, and consequence of the litigation, the party to the suit, or principal, is alone primarily liable for them. The liability of the sureties is secondary, arising upon their undertaking. To that extent they are liable, but no further. The judgment was rendered against the principal and sureties for the debt and all costs of suit. That would be right, if the debt and -costs did not exceed the amount of the bond : but as they did, a greater sum was adjudged against the sureties than they were liable for upon their undertaking. This was error. The judgment should have been rendered against the sureties for the debt and so much costs only as, in the aggregate, would not exceed the amount of their bond. The judgment, as to the sureties must be reversed, and such judgment here rendered as the Court below ought to have rendered.

Reversed and reformed.