When tbis case was bere upon tbe former appeal (156 N. O., 374) we said: “Tbe defendant was not entitled to have tbe judgment for costs made a charge against tbe separate estate of tbe feme plaintiff. Tbe ordinary judgment for costs was rendered against ber, wbicb was proper.”
If tbe plaintiff was not satisfied witb tbis adjudication, ber remedy was by petition to rebear, as sbe cannot present tbe same question for review upon a second appeal. Roberts v. Baldwin, 155 N. C., 279.
If, however, tbe question was res integra, we would not doubt the liability of tbe plaintiff.
Sbe is a party and is suing to recover damages to ber property under a statute wbicb permits ber to sue alone, without tbe joinder of ber husband (Graves v. Howard, 159 N. C., 594), and costs are not contractual, but tbe creature of tbe statute. Costin v. Baxter, 29 N. C., 111; Clerk's Office v. Commissioners, 121 N. C., 29.
Tbe capacity of a married woman to contract is not involved. Sbe has used tbe court and its process to' enforce a claim, and having failed in ber action, tbe statute imposes upon ber, as it does upon all parties in eases like tbis, liability for tbe incidental expenses.
Tbe question has been decided in other jurisdictions, and upon tbe ground that, when by statute tbe married woman may sue alone, sbe must suffer tbe same penalty as other litigants. 5 Ency. Pl. and Pr., 156; Hardin v. Holton, 50 Ind., 324; Hayes v. Insurance Co., 76 Va., 228; Askew v. Renfroe, 81 Ala., 361.
In tbe Indiana case tbe Court says: “It is objected that tbe judgment for costs against tbe plaintiff is erroneous, because sbe was a married woman. Tbis objection we bold to be utterly untenable. A married woman may, under our statute, bring a suit in ber own name for ber separate or individual property, but if sbe fiáis to establish ber right to maintain ber action, she must take tbe liabilities for costs of all other persons in such a ease as tbis.”
There is no error.