If the costs were paid with the money of Harper, the court was right in. setting aside the execution; but although this is alleged, the testimony is too light and contradictory to afford a safe rule for our government. The weight of the evidence certainly is, that they were paid by Eckles, one of the sureties in the recognisance. Divesting the case of this assumed fact, this is the ordinary case of a judgment against two persons, fixing them for the costs on execution against both, and a levy on the property of one, the other being insolvent. Whether Mrs. Miller, the complainant, was properly one of the defendants in the ejectment, we cannot now inquire. She appears on the record as such, and it is too late, when the execution for costs is issued, to allege she had no interest in the controversy. Her remedy, if any, is against those who without authority made her a party to the original action. It is very certain the sureties had nothing to do with the controversy in its commencement, and *259ought not to be affected by the improper conduct (if it existed, which I doubt,) of those who undertook to act for her. It is said, she was no party to the writ of error — but this is an error; for the writ was sued out in the name of both, by the attorney of both: and Eckles and IJolcomb were the sureties of both. By entering into the recognisance, they became jointly and severally bound for payment of costs; and of course .Mrs. Miller as well as Harper may be compelled, by execution, to refund the amount paid.

But exception is taken to the execution on another ground. It is said, that the costs paid to the plaintiff by a joint trespasser, or even by his surety in a bond on a writ of error conditioned for their payment, is a satisfaction; and a sale of a judgment for them to such hail, furnishes no additional means for him to make them f<|rm a co-defendant with his principal in the recognisance; and more especially so, when that principal is shown by the record to have been the real defendant in the action in which they are received. The court are of the opinion, that even if the recognisance was paid by Eckles, he had no right to be substituted in the room of the plaintiff in the ejectment, or to have the judgment marked for his use, so as to select which of the defendants he pleases to make the costs from. We do not perceive the force of the remark, that Mrs. Miller was not the principal in the ejectment ; for admitting she was not, nevertheless, she is answerable to the plaintiff as a co-defendant for the costs which follow the judgment. Nor do we think it of any moment whatever, that the original action was trespass in ejectment; for where judgment is rendered, whether the action be tort or contract matters not. In either case it is assignable, either to a third person or to a surety in the writ of error. It is not a case of substitution, but a transfer of the judgment for a valuable consideration, wMch there is nothing to prevent. We therefore see nothing exceptionable in taking an assignment of the judgment by the bail, and proceeding to coerce payment by execution, as in ordinary cases. They were compelled to pay, and had a perfect right to take a transfer of the judgment, as an indemnity. This view of the case would hardly admit of doubt, were we not unconsciously swayed by the supposition of what there is no adequate proof, that the execution was the result of a contrivance between Harper and Eckles to throw the costs on Mrs. Miller. If that had been proved, we agree the action of the court in setting aside the execution would be proper.

The order of the court, making the rule absolute to quash the attachment and' set aside the execution, is “ reversed,