¶1Suit by Scotten and his wife against Arms-worth and others, to quiet the title to certain real estate in the possession of Scotten’s wife, and of which she claimed to be the owner in fee, but to which the defendants also claimed title. Issues were formed, and a trial resulted in a finding and judgment for the plaintiffs, on the 9th of September, 1866. On the same day, the defendants moved the *496court for a new trial, under the statute regulating trials in such cases, without cause, which the court granted, to operate upon the payment of the costs accrued in said cause, provided the cost's were paid within one year from the date of said judgment.
¶2On tire 29th of August, 1867, the defendants paid the amount of the costs, $80 14, to the clerk of said court, in national hank papex*, which the clerk received without objection, and docketed the case for trial at the succeeding November texun of said court. A part of the costs were due to the plaintiffs, which they refused to receive from the clerk because it was not paid in legal money, that is, in gold or silver, or legal tender treasury notes of the United States, and at the November term of the court, 1867, moved the court to stxike the case from the docket, because the costs wex*e not paid, in legal money, within one year from the date of the judgment. The defendaxxts thereupon offered to pay said costs ixi legal tender treasury notes, but the court sustained the plaintiffs’ motion, and stxmck the case from the docket, to which the defendants excepted, and appeal to this court.
¶3Two questions are presented by counsel. 1. Is the clex-k authorized, by virtue of his office, or as the agent of the judgment plaintiff, inxplied by law, to receive money due on judgments in said court, or costs recovered thex-eby ? aud if so, 2. If a judgmexxt be paid to the clerk in anything bxxt legal money, without the authority or assent of the judgment creditor, is it a valid payment, and does it dischaxge the judgmexxt?
¶4The judgment x'eixdered ixx this case for costs was in favor of the plaintiffs.*- It was their judgment. It covered only the costs made by them in the px’osecution of the suit, and which they had either paid, or were liable to pay. The costs made by a party to a suit are due as soon as the services are rendered, and payment thereof may be enforced by fee bill, and the theory of the law is, that the party either has paid or will pay his costs, because he is liable therefor, and hence, if he succeeds in the suit, he recovers *497back from his adversary the costs so made by him in its prosecution. It is doubtless not unusual for officers and others to whom costs are due, not to compel their payment until after final judgment, and in such cases, the costs, when collected, are paid directly to those to whom-they are due. This is -necessarily correct as to the costs made by the losing party, which are not • covered by the judgment, and, if not voluntarily paid, can only be col- . lected by fee bill. But the costs recovered by the judgment are due to the judgment plaintiff', and it is his right to control and receive the money so recovered. If received by.' the clerk, it can only be paid out to those to whom the.judgment creditor is liable by his authority, either express.* or implied. So much of the costs, therefore, as were cowered by the judgment, were due to the plaintiffs, and subject to their control, the sanie as any other money judgement.
¶5The clerk is the officer of the court, the keeper of its-, records, and in many respects is ex officio the agent of judgment plaintiffs, not by their express authority, but made ■ such by legal necessity and public, policy. And assuming,, in this case, but without deciding the question, that he is ■ authorized, by virtue of his office, to receive all money due ■ on judgments in the court of which he is clerk, still, it seems to be well settled that a payment so made to the - clerk, or other officer of the law, in other than lawful money, or, in other words, that which is made by law a legal tender,-, and without the authority or assent of the judgment plaintiff, is not a valid payment, and does not discharge the judgment. Griffin v. Thompson, 2 How. (U. S.) 244; McFarland v. Gwin, 3 id., 717; Prather v. The State Bank, 3 Ind. 356.
¶6In the latter case, it is said that “ no clerk nor sheriff nor-' constable, as such, has a right, under the constitution, and law, to receive payment of a judgment in anything but the legal currency of the country.”
¶7The objection in this case may seem to be very technical, as the paper of the national banks, in which the payment was made, was of equal value with the legal tender treasury notes, in which a valid payment might have been made, but it was nevertheless the right of the plaintiffs to refuse to receive it, and to avail themselves.of the benefit of the objection, and the court could not do otherwise than so rule. The judgment must therefore be affirmed.
¶8The judgment is affirmed, with costs.