#### NAPER *v.*BOWERS.

Costs — recovery of — order and attachment — officers of court — judgment of restitution— execution.

Where the officers of court give credit to the parties for costs,'instead of requiring prompt pay, they have the same remedy against their debtor as other citizens, but cannot iiave an order of attachment to compel payment.

The order and attachment is the proper course to compel payment, where a continuance or amendment has been obtained on condition of payment; but it will only be granted on the application of a party to the suit, not a stranger.

The costs are supposed to be paid as they accrue, and tiiose only are included in the judgment which the party recovered is supposed to have paid.

On a judgment of restitution in error, the costs improperly paid may be recovered back.

Naper recovered judgment in the Court of Common Pleas, in a case appealed from a justice. Bowers was bail on the appeal. The judgment debtor died after the judgment, and Bowers took out administration on his estate; and as such, brought a writ of error upon the judgment against his intestate, and that judgment was reversed by the Supreme Court.

The clerk of this court, and the sheriff, claiming that their costs *693remain unpaid, now move the court for a rule upon Bowers, to show cause why he should not be ordered to pay the costs.

*Giddings,*

in support of the motion, cited *Meacham*v. *Dodge: ante 375.*

Wright, J.

If the costs now sought to be recovered accrued before judgment in the Common Pleas, they were occasioned by the losing party, and so could not be included in the judgment; and if the officers chose to trust the defendant for them, instead of exacting prompt payment, they had a right to do so, or they had a right to demand prompt payment. The fact of a credit being given for costs to a party litigant, does not entitle the officer to ask a summary proceeding to collect his money. Such persons have no stronger claim to a summary proceeding than any other citizen. The costs occasioned by the plaintiff and which he paid, or is supposed to have paid, were included in *his*judgment and he either recovered them back, or they remain due to him, (5 *O. R.*277; 1 *O. R.*274.) On the reversal there was a judgment of restitution, which will enable the party to recover back by proper process of execution, the amount of costs he has been compelled to pay by the erroneous judgment: (4 *O. R. 375.)*But whether paid or not, the officers of the court, strangers to the judgment, cannot interfere. When they trust their customers they have the same remedy with other citizens to coerce payment. What the court said in *Meacham*v. Dodge, ante 375, was only that in a proper case payment of costs would be enforced by order and attachment. When a party is ordered to pay costs as the condition of obtaining a continuance or leave to amend, and neglects to pay, the Court will compel him by order and attachment, on the application of the other party to the suit, but not on the application of the clerk and sheriff, who are strangers to the suit. Such would be a proper case for the application, the case before us we think not of that class. The motion is denied.