
    Patterson and Another v. Brown.
    
      Friday, December 21.
    An execution-defendant may waive tiie benefit of the condition in a delivery-bond which is prescribed by statute, and which permits him to sell the property at private sale, and, when sold, pay the appraised value thereof.
    In a suit on a delivery-bond, damages should not be given on the costs.
    ERROR to the Marion Circuit Court.
   Blackford, J.

Brown brought an action of debt against Samuel J. and Elliott M. Patterson, on a delivery-bond executed in 1846. The declaration sets out the condition of the bond and assigns breaches. General demurrer to the declaration; demurrer overruled; and the cause submitted to the Court for an assessment of damages. The finding of the Court was, that the goods levied on were worth 500 dollars, and that the plaintiffs’ damages amounted to 223 dollars and 52 cents. Judgment for the damages assessed and costs.

There are two objections made to this judgment. The first is, that the bond described in the declaration is defective, because the condition does not state that the execution-defendant might sell the goods levied on at private sale. The statute says, that when any property shall be -levied upon, &c., the execution-defendant shall have the right to the possession thereof, by executing a bond, &c., conditioned for the delivery of such property, &c.; and conditioned further, that said defendant may sell said property at private sale, and when so sold said defendant shall pay the appraised value thereof, &c. R. S. p. 1045, s. 6. We do not think that the validity of the bond is affected by the said omission in the condition. The part omitted is directed by the statute to be inserted, in the condition of the bond, for the benefit of the execution-defendant, and he has a right to waive that benefit if he thinks proper to do so.

The second objection is, that ten per cent, damages was assessed on the amount of the costs, as well as on the rest of the judgment. That objection is valid. In affirming a judgment of the Circuit Court, we do not give damages on the costs; and we do not think that they ought to be given on the costs in cases like the present. R. S. p. 745, s. 386. The damages are given on account of the delay, occasioned by the giving of the bond, in the payment of what is due to the plaintiff exclusive of the costs.

H. and H. Brown and A. G. Porter, for the plaintiffs.

O. H. Smith, for the defendant.

Per Curiam.

The judgment is affirmed, except as to 2 dollars and 94 cents, the damages assessed on the costs, and as to that sum the judgment is reversed. No costs here.  