
    JEREMIAH TAYLOR Jr. vs. VINCENT FORMAN.
    Upon a trial of the right of property before a jury, summoned by a sheriff, the claimant recovered less than half (in value) of the property claimed by him: the sheriff taxed all the costs against him.
    Held.—That the taxation of the costs by the sheriff was right.
    ERROR TO MARION CIRCUIT COURT.
    Anderson & Dryden; for-plain tiff.
    1st. That the claimant in a proceeding like this, must make good his whole claim before he can recover costs from the plaintiff in the execution.
    By the provisions of the 21st section already cited, any person other than a defendant in the execution may claim the property levied upon or any part thereof. It is the business of such claimant to determine at bis peril before he makes bis claim, what his rights are. He may claim the whole of the property levied on, if it be his. If not, he may claim so much as he has a right to. If he sustain his claim, the 23d section of the same act provides that the plaintiff in the execution shall pay the cost of the inquest. If he does-not sustain it, he shall himself pay the costs. It is not upon his recovering a part of what he claims that he is entitled to, costs against the plaintiff, but upon his making good his claim. In this case, the claimant claimed the whole of the property levied on, of the value of 92 dollars, but recovered only 32 dollars thereof. The plaintiff in the execution recovering the residue thereof, 60 dollars.
    2d. If the defendant, in error is not liable for all the costs, by reason that he recovered a verdict for a part of the property claimed, still, under the 23d section before referred to, he cannot recover costs of the plaintiff, because the verdict was as well for the plaintiff as for defendant—more for the plaintiff than the defendant.
    The most favorable views that can be taken of this statute for the defendant is, that the- case now under consideration is not provided for by the legislature, and that the parties respectively are left each to pay his own costs, as at commoD law.
    Glover & Campbell, fpr. defendant..
    1st. The defendant in error recovered a portion of the property, and as general principles was' entitled to costs.
    2d. This remedy was given in lieu of the common law actions of trover, detinue, or replevin ; and if a verdict for part would have entitled him to costs, he is by. analogy entitled here.
    3d. The court had no power to divido the costs, since the statute is silent, and the common law would give costs to the plaintiff.
    4th. To have given the costs against the plaintiff, as was done by the sheriff, would have been without the sanction of any admitted rule of law or sound analogy. Rev. code 1845 p. 480 sec. 23.
   Judge Birch

delivered the opinion of the court.

A fieri facias in favor of the plaintiff having been levied upon a horse worth about sixty dollars, a bureau worth about twenty-five, and a bed worth about seven dollars, the whole was claimed by the defendant in error, and on a final trial of the right of property by a sheriff’s jury, the horse was found to be subject to the execution, and the balance exempt. The sheriff having adjudged the costs against the claimant, the court, on the motion, so retaxed them as to devolve the payment of all (except the small portion incurred by a continuance at the instance of the claimant) upon the plaintiff in execution, who, having excepted, is also plaintiff here.

Passing by the question not raised by the record, whether, is cases like the present, the sheriff has any authority at all, or, if he have, whether it was not intended by the statute that his judgment as to costs, like the verdict of the jury as. to the property itself, should he final and conclusive, we are not disposed to interfere with a discretion which the record contains no evidence to impugn, hut rather to support..

The statute is somewhat ambiguous, hut taking the 21st and 23d sections of the act together, and acting upon the statute alone, we would have adjudged the costs in this case as the sheriff did, even without any of the special circumstances with which the officer who witnesses the trial of a cause is presumed to he most familiar, and which,, therefore, may very properly enter into his decision.

The claimant not having recovered even the major portion of the-property concerning which he demanded a trial, and which resulted in a heavy hill of costs, we are unable to perceive upon what principle of justice he would, he entitled to inflict costs upon another for prosecuting that heavier portion of his claim adjudged to be unfounded ; and the-sheriff having no authority to divide the costs, as at common law, and; there being no motion to that effect in the court below, we feel that we-cannot do better than to treat it-as a case in which that officer was as-well (?r. better qualified to approximate the point of justice between the-parties than either the circuit court; or this court. There being, therefore, no question made as to the transcension of this authority, and no-abuse of it being apparent from the record, the judgment of the circuit court is. reversed.  