This is an action on book. To recover for the services charged the plaintiff must show that he was employed by the defendant to defend the suit. It is not enough for the plaintiff to show that the defendant may be liable, by virtue of his obligation to him as his surety, to pay him whatever damages and costs he may necessarily incur in the defence of the suit on the recognizance. That liability for these expenses and services if it exist at all rests upon Dougherty by reason of his duty to indemnify the plaintiff as his surety ; but does not authorize the plaintiff to charge the damages and costs he may so have to pay on book.

1. We do not think the suit on the recognizance is a branch of the first suit in such a sense that a retainer to defend the first suit extends to an employment to defend the second. Dougherty might think he had a good defence to the first suit; but, that failing, know he could not defend the suit on the recognizance and therefore not wish to answer to it.

2. Dougherty knew that Smith did appear in the second suit to defend it. Now if that defence was for Dougherty’s benefit, then knowledge that he was so defending it and making no objection, would imply that he assented to such employment of Smith and make him liable therefor. But if Smith in defending the suit was engaged in a defence for his own benefit and not for Dougherty, then *533knowledge of that fact and not objecting, would not make Dougherty liable.

Hence we must examine to see what the nature of the defence to the second suit is. It is a tender by Smith, made soon after the suit was brought and which he claims is sufficient, and which Allen says is not sufficient. When the bill of exceptions says — “ the question, as to whether this tender is sufficient or not, is the question in dispute in the pending suit,” — we construe it to mean that that is the only defence made by Smith. None other appears, and if there were any other it should have appeared in the bill of exceptions.

The tender was made by Smith, without any request from Dougherty. Its object doubtless was to relieve the plaintiff from further costs. It was immaterial to Dougherty whether such a tender was made or not; and whether it prevails or not. He is the person ultimately liable for the damages and costs recoverable in the suit on the recognizance, and it is the same to him whether he pays them to Allen, or to Smith because he has paid them to Allen. The defence — the tender — is therefore wholly for Smith’s benefit and at his own instance.

Taking this view of the case it is the opinion of the court, that Smith does not show any employment express or implied from Dougherty to defend the suit, and therefore that he cannot recover, for the items in dispute, in this action.

The exceptions of the defendant, as to the allowance of the items numbered 29, 30, 31, 32, 33, 34, are sustained, and therefore judgment is reversed and judgment is rendered for the plaintiff to recover only the amount for which the county court rendered judgment after deducting the above items and the interest, if any, allowed upon them. The defendant will also be allowed his costs in this court, to be deducted from the plaintiff’s judgment.