delivered the opinion of the court.

The plaintiff in execution, having maintained his right to subject to execution a part of the property claimed by the appellee, was entitled to a judgment for costs under § 1778 of the code.

By § 1777 the burden of proof is put upon him and he is declared entitled to the same rights as in other actions, one of which is to have an award of costs upon sustaining the issue as against his adversary occupying the position of a defendant. The power conferred upon the trial judge to order the payment of costs by either party, in his discretion, by § 2386 of the code, arises only where no provision has been made by law “ expressly or by fair implication.”

The verdict of the jury, having settled the issue in favor of the plaintiff as to a part of the property seized and in favor of the claimant as to the other, will not be disturbed, but the jury failed to assess the value of the cotton seized, nor is there anything in the return of the officer by whom the levy was made indicating what the value per pound was; his valuation is of it at so much per bale. A writ of inquiry should have been prosecuted to determine how many pounds of cotton were contained in the bales and its value. This being found, there will be no difficulty in awarding a proper judgment on the verdict.

The. judgment entered is reversed, but the verdict of the jury is not disturbed, and the cause is remanded for further proceedings.