
    Reuben Gayden vs. Rachel Marshall, Administratrix of Reuben Marshall, deceased.
    Where a claimant has given bond to try the right of property levied on under an execution, the statute, H. & H. 655, provides that the value of the property assessed by the jury, shall determine the amount of credit to be given on the execution, if the property be found subject to it; where, therefore, in an action against a surety on a claimant’s bond, it appeared that the claimant, after the trial, had delivered up the property towards the satisfaction of the judgment, and the plaintiff retained the same without sale by the sheriff; and the value of the property as assessed by the jury was less than the amount of the execution ; and the jury gave damages against the claimant because the claim was made for fraudulent purposes ; it was held, that the return of the property by the claimant, and the appropriation of it by the plaintiff without sale by the sheriff, did not amount to an actual satisfaction of the whole judgment rendered against the claimant.
    In an action against a surety, on a bond given by a claimant, to try the right of property under the statute, H. & H. 634, the costs of the proceeding on the trial of the right of property cannot be recovered ; the surety in such case being liable only for such damages as were assessed against the claimant by the jury.
    ERROR from the circuit court of Carroll county ; Hon. Francis M. Rogers, judge.
    This was an action of covenant brought by Reuben Marshall against Reuben Gayden, to the October term, 1844, of the circuit court of Carroll county, founded on a bond given by Philip S. Beasley, as claimant, and Reuben Gayden, as surety, to try the right of a negro man named Joe, levied on as the property of Robert E. Beasley, under an execution in favor of Marshall. The breach assigned in the declaration was, that the claim of Philip S. Beasley to the negro man Joe, was not sustained; and it appeared to the jury, that the claim was made for fraudulent purposes and for delay; that a large amount of damages was therefore assessed against him, and judgment was entered for the damages so assessed, and also for a large amount of costs; and that neither Beasley nor the defendant had paid either the damages or costs. The defendant filed two pleas — the first, that Philip S. Beasley did well and truly pay the plaintiff all such damages as were assessed against him, as in said declaration is alleged, and did well and truly deliver to said sheriff the said negro man Joe, according to the form and effect of said covenant, &c.; and the second, a general plea of covenants performed. Issue was joined on both pleas. At the May term, 1846, the plaintiff’s death was suggested, and the suit revived in the name of Rachel Marshall, his administratrix. The case was then tried, and the jury found a special verdict in these words, viz. — “ That the negro man Joe had been levied on by virtue of a. fieri facias in the case of Reuben Marshall against Robert E. Beasley; that Philip S. Beasley claimed said negro, and executed the bond in the declaration set forth, with Reuben Gayden his security; that an issue was made in the circuit court of Carroll county, to try the right of property in said slave, and the jury in said trial returned their verdict for the plaintiff in execution, and assessed the value of the slave at five hundred dollars; and they further found that the claim of the claimant was fraudulent, and assessed the damages at fifty dollars ; they further found, by their verdict, the costs, that accrued on the trial of said issue, was one hundred and fifty-two dollars and fifty-eight cents; and judgment was regularly entered against said claimant in pursuance of said verdict; that a writ of execution issued on said judgment, and the negro slave was delivered' up to the sheriff, and by said sheriff was delivered up to Reuben Marshall, and said slave was never exposed to sale; and the execution was returned nulla bona as to the balance.” Upon which special verdict the court rendered judgment against the defendant, for the full amount of the damages and costs which were assessed and accrued .in the trial of the right of property, and also for the costs in this case. To reverse which judgment, the defendant now prosecutes this writ of error.
    
      
      Sheppard, for plaintiff in error.
    This was an action of covenant against Gayden as the surety on a claimant’s bond.
    The statute, in providing what shall be the condition of such bond, declares that the obligors shall pay all such damages as the jury may assess in case they find that the claim was made for purposes of delay and fraud; and in the same section enacts that such damages shall not exceed ten per cent, on the value of the property claimed.
    The jury, on the trial of the right of property, having assessed the damages at fifty dollars, it was manifest error in the court to extend the liability of Gayden beyond that amount.
    The surety may always stand on the letter of his contract, and his liability will not be extended by implication.
    The property surrendered to the sheriff should have been sold, and the proceeds applied first to satisfy the original judgment, and the balance to the payment of the judgment against the claimant.
    The surrender of the property to the plaintiff in execution by the sheriff without a sale, operated as a satisfaction of the judgment, for payment of which the property should have been sold.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action brought against a surety upon a bond executed by the claimant of property under an execution. There was a special verdict for the damages assessed by the jury because the claim was made for fraudulent purposes; also for the costs in that proceeding. Judgment was given for the plaintiff for the damages and costs.

Two grounds of error are relied on for reversal. One is, that the property having been delivered up by the claimant after the trial, towards satisfaction of the judgment, and the same having been retained by the plaintiff, without sale by the sheriff, that amounted to actual satisfaction of the whole judgment. The statute expressly provides, that the value of the property assessed by the jury, shall determine the amount of credit to be given on the execution. H. & H. 655. In this case, the value assessed by the jury was less than the amount of the execution. There is nothing in this point.

The other point is, that the costs of the proceeding on the trial of the right of property, cannot be recovered in this action on the bond of the surety. The statute requires the claimant to give bond to the plaintiff, with one or more sureties, conditioned for payment to the plaintiff, of all such damages as may be assessed against the claimant by a jury, in case the claim should be determined against him. H. & H. 634.

In general, costs are to be regarded as part of the damages. See Phillips v. Bacon, 9 East, 299; Cro. Jac. 69, 420. Yet a statute may be so framed as to exclude this construction. Pil-folcPs case, 10 Co. 116. We think the present statute is of that kind. The damages to be paid, are those assessed by the jury. The jury do not assess or tax the costs. That is the act of the clerk, under the direction of the court. They are not therefore, under this statute, included in the damages assessed by the jury, and cannot be recovered in this action.

If the condition had been simply for the payment of all damages sustained by the plaintiff, then the costs would properly have been included as part of the damages. Why the act was passed in this restricted form, we cannot say — we can look to the law only as it is written.

The judgment must be reversed, and this court proceeding to give a judgment on the special verdict, doth direct it to be entered for the fifty dollars damages, assessed by the jury, with interest from the time of such assessment' — but not for the costs.  