—The principal question in this ease is, whether the act of 1839 (Clay’s Dig. 316, § 25) applies to an action brought on an attachment bond for wrongfully and vexatiously suing out an attachment. The statute is confined by its terms to “actions brought to recover damages for torts” ; and as the law of costs is penal (Clay’s Dig. 239, § 12), it must be strictly construed. For the appellant it is insisted, that the suit in the present case, though based upon a contract, is in reality an action to recover damages for a tort; and in one sense it certainly is, for no action could be sustained on the contract, if the wrong had not been perpetrated: but we apprehend, the true criterion is, whether the tort is simply the incident, or the real foundation of the action. In *456the suit on the attachment bond, the wrongful act is necessary to be proved ; but it is only essential as the medium by which the breach of the contract is to be ascertained, and the quantum of damage determined. The action cannot properly be said to be founded on the wrong, for it can be brought against the surety alone, who may have had no participation in it; and if it is founded on a contract as to him, it cannot be otherwise as to his principal.
The overruling the motion to nonsuit the plaintiff below, under the act of 1807, (Clay’s Dig. 325, § 75,) was a matter within the discretion of the court; and as there is nothing in the record to show it was improperly exercised, we cannot say there was error in the action of the judge in this respect. Cummings v. Edmundson, 5 Port. 145; Tippin v. Petty, 7 ib. 441; Ainsworth v. Partillo, 13 Ala. 460.
Judgment affirmed.