
    
      The State v. David G. Wylie (late sheriff,) et al. his Sureties.
    
    Where the Sheriff and his sureties were sued upon their bond, executed prior to the Act of 1839, and sundry verdicts had been before recovered against them, they were not allowed to include the costs of the former judgments, and the interest paid on the former recoveries against them, as parcel of their aliquot portions of the penalty of the bond.
    Tlie interest which, after judgment, accrues on a cause of action bearing interest, is no p'art of the recovery or damages assessed; and where the damages have been assessed to the whole amount of the penalty of a bond, the subsequently accruing interest is additional thereto, and given, by the Statute, in the nature of damages for the default of the defendant in not paying, at the time of tire recovery, the sum recovered.
    Costs, in addition to the penalty, may be recovered on a penal bond, for they are given to compensate the plaintiff for his outlay in obtaining justice.
    
      Before Mr. Justice Withers, at Fairfield, Fall Term, 1847.
    The bond sued upon, in this case, was executed prior to the A. A. 1839, in relation to the office of Sheriff, and therefore the sureties of the Sheriff were liable for their aliquot parts of the penalty only.
    Sundry verdicts had before been recovered against them by creditors of the Sheriff, Wylie, and the only question in several cases, upon suggestion, under judgment recovered in the case above stated, was, whether the defendant’s sureties should be allowed to reckon, as parcel of their aliquot portions, the costs of former judgments against them, and the interest paid upon the former recoveries.
    The Circuit Judge says: I held, that they were not entitled to any credit for costs which accrued in the litigation of other creditors against them — for I could not conceive how the creditors of the Sheriff should receive among them what the law allowed, to wit, the whole penalty, if costs arising from the default of the sureties and their principal, paid (as they were) to various officers of Court, should be deducted from the creditors’ fund ; and for the like reason I excluded the item of interest from the calculation, arising, as that did, from the peculiar default of the defendants. If the sureties had gone into the Court of Equity, I believe that jurisdiction would have required them to pay into Court the whole penalty of the bond, which would have been invested, and the creditors might have had interest on the penalty. I allowed a credit only for the principal sums recovered by others, excluding also costs in former cases.
    
      The defendant appealed, on the following ground — viz:
    Because the sureties to the Sheriff’s bond being liable, by the Act of the Legislature, for only their proportionate parts, their liability cannot be extended beyond that amount, by charging them in addition with the costs of the judgments against them on the bond, or the interest accruing after the judgments have been recovered.
    Boyce, for the motion.
    McDowell, contra.
    
   Wardlaw, J.

delivered the opinion of the Court.

According to the Act of 1795, (5 Stat. 258,) each surety here was liable only for his equal part of the penalty of the bond; that is, only to the amount of that equal part could damages have been assessed against him if he had been sued separately, and only to that amount can damages assessed be collected from him when he has been sued jointly with others.—See 2 Bail. 375.

The interest which, after judgment, accrues on a cause of action bearing interest, and which, by virtue of the Act of 1815, (6 Stat. 4,) may be levied under the execution, is no part of the recovery or damages assessed. In an action on a bond, where the damages have been assessed to the whole amount of the penalty, nothing forbids the levy of this subsequently accruing interest, in addition to the penalty (see Bonsell v. Taylor, 1 McCord, 503): it is in the nature of damages given by the statute for the default of the defendant in not paying at the time of the recovery the sum recovered. The Circuit Court was then right as to the interest. It is still more clear that costs, in addition to the penalty, may be recovered on a penal bond, for they are given to compensate the plaintiff for his outlay in obtaining justice. The motion is therefore dismissed.

Richardson, J. O’Neall, J. Evans, J. Frost, J. and Withers, J. concurred.

Motion dismissed.  