The Opinion of the Court was delivered by
Trumbull, J.
This was an action upon the official bond of a constable, commenced against the constable, Robertson, and his securities, before the Probate Justice of Marshall County, acting as an ordinary justice of the peace, and taken by appeal to the Circuit Court, where judgment was rendered against the plaintiffs in error for $1000, the amount of the penalty of the bond, with an order that an execution issue for fifty two dollars and seventy four cents, being the amount of damages as found by the Court, a jury having been dispensed with by consent of parties.
The Circuit Court overruled a motion to dismiss the suit, and two causes are now assigned to show that decision to be erroneous: First, that the suit should have been dismissed for want of security for costs, and secondly, because the Probate Justice had not jurisdiction of the cause.
Section one, chapter twenty six, of the Revised Statutes, provides, that in all actions on office bonds for the use of any person, the person for whose use the action is to be commenced, shall, before he institutes such suit, file with the clerk of the Circuit or Supreme Court in which the action is to be commenced, security for costs. This section of the statute manifestly has reference, by its terms, to actions commenced in the Circuit or Supreme Court, and not to those instituted before a justice of the peace; but at the time of its passage, justices of the peace had no jurisdiction of actions upon office bonds. That jurisdiction was conferred by a subsequent statute, and as there is the same reason for requiring security for costs, whether the action is brought before a justice or the Circuit Court, it is but fair to presume that the Legislature, in transferring to justices of the peace concurrent jurisdiction with the Circuit Court in this class of cases, intended to confer also the incidents to that jurisdiction, so far as they were applicable to proceedings in a justice’ court. Had the motion to dismiss been made in the first instance before the Probate Justice, and in case of refusal renewed in the Circuit Court, its decision denying the same would have been error. It does not, however, appear that any motion to dismiss was made before the Probate Justice, and as the motion is of a dilatory character, tending only to defeat the action, and not the cause of action, the plaintiffs in error, by omitting to make it before the justice, waived their right to do so when the case came into the Circuit Court.
Upon the question of jurisdiction in the Probate Justice to try the cause, there cannot be a doubt. The jurisdiction and mode of proceeding are expressly given and pointed out in sections, from 118 to 123, inclusive, of the Act concerning justices of the peace and constables. Rev. Stat. 332. The fact that difficulties may arise in the exercise of this jurisdiction by justices of the peace, which we apprehend will be less than counsel suppose, does not take away-the jurisdiction itself.
The only remaining question raised by the assignment of errors, and indeed the principal and most important one, relates to the measure of damages. Robertson, as constable, had failed to return an execution in favor of Cochran & Perry within ten days after its proper return day, and on account of this failure, the parties for whose use the suit was brought, insisted upon damages to the full amount of their execution and interest, while the plaintiffs in error contended that they were liable only for nominal damages in case they could show that Cochran & Perry had suffered no real injury by the neglect of the constable to return the execution, and offered evidence tending to show the insolvency of the defendant in execution, and that Cochran & Perry had sustained no real damage by the failure to return the execution within the time required by law. This evidence the Court excluded, and assessed the damages to the amount of the execution and interest.
The correctness of this assessment of damages depends upon the construction to be given to section 118, chapter 59, of the Revised Statutes, which is as follows : “ If any constable shall neglect or fail to return an execution within ten days after its proper return day, or if the demand, debt or claim be wholly or in part lost, or if any special damage shall arise to any party by reason of the neglect or refusal to act, or the misfeasance or nonfeasance of any constable in the discharge of any official duty, the party aggrieved may have his action in the Circuit Court, or when the amount claimed does not exceed one hundred dollars, before any justice of the peace of the proper county, against •such constable and his securities on the official bond of such constable, and shall recover thereon the amount of said execution, with interest from the date of the judgment upon which the original execution issued.”
To give this section of the statute a literal meaning, and allow damages to the extent of the execution and interest in all cases where the party aggrieved is authorized by said section to have his action, would, it is insisted, be absurd, and indeed impossible; as in the case of a neglect by the constable to serve a summons, it would be impossible to allow the party aggrieved in an action upon the constable’s bond, damages to. the amount of the execution, when in fact there was and had been no execution; wherefore it is contended, that as the last clause of the section fixing the amount of damages to be recovered, cannot be enforced in all the various cases where the party aggrieved is authorized to sue, it was improperly enforced in this case. What construction is then to be given to this section of the statute ? Shall the last clause, which declares that the party aggrieved shall recover the amount of said execution with interest, be construed to have no meaning? Such will be the consequence, if the construction contended for by the plaintiffs in error be adopted, for if this latter clause does not apply to a case where a constable neglects to return an execution within the ten days, it cannot apply to any case. The Legislature manifestly intended something by the language used, and it is the duty of the Courts to give effect to the legislative intention' as manifested by the words they have chosen. This can be done by holding that the amount of damages to be recovered for a failure to return an execution within the ten days, is the amount of the execution with interest, while the sum to be recovered in the other cases provided for in said section, is the amount of damages actually sustained. This construction gives effect to the whole section, and is undoubtedly in accordance with the intention of the Legislature. Upon a careful examination of the whole section, it will be seen that the word execution occurs but twice in it; once when speaking of a failure of the officer to return an execution within a certain time, and again in the last clause of the section, which declares the. amount to be recovered, and where it is prefixed by the word “sú;zé?,” thus referring back to the word as previously-used in the first part of the section. So that in strictness, the clause of the section declaring the amount of the recovery to be had, is confined, by the language used, to the clause having reference to the return of the execution.
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The Opinion of the Court was delivered by
Trumbull, J.
This was an action upon the official bond of a constable, commenced against the constable, Robertson, and his securities, before the Probate Justice of Marshall County, acting as an ordinary justice of the peace, and taken by appeal to the Circuit Court, where judgment was rendered against the plaintiffs in error for $1000, the amount of the penalty of the bond, with an order that an execution issue for fifty two dollars and seventy four cents, being the amount of damages as found by the Court, a jury having been dispensed with by consent of parties.
The Circuit Court overruled a motion to dismiss the suit, and two causes are now assigned to show that decision to be erroneous: First, that the suit should have been dismissed for want of security for costs, and secondly, because the Probate Justice had not jurisdiction of the cause.
Section one, chapter twenty six, of the Revised Statutes, provides, that in all actions on office bonds for the use of any person, the person for whose use the action is to be commenced, shall, before he institutes such suit, file with the clerk of the Circuit or Supreme Court in which the action is to be commenced, security for costs. This section of the statute manifestly has reference, by its terms, to actions commenced in the Circuit or Supreme Court, and not to those instituted before a justice of the peace; but at the time of its passage, justices of the peace had no jurisdiction of actions upon office bonds. That jurisdiction was conferred by a subsequent statute, and as there is the same reason for requiring security for costs, whether the action is brought before a justice or the Circuit Court, it is but fair to presume that the Legislature, in transferring to justices of the peace concurrent jurisdiction with the Circuit Court in this class of cases, intended to confer also the incidents to that jurisdiction, so far as they were applicable to proceedings in a justice’ court. Had the motion to dismiss been made in the first instance before the Probate Justice, and in case of refusal renewed in the Circuit Court, its decision denying the same would have been error. It does not, however, appear that any motion to dismiss was made before the Probate Justice, and as the motion is of a dilatory character, tending only to defeat the action, and not the cause of action, the plaintiffs in error, by omitting to make it before the justice, waived their right to do so when the case came into the Circuit Court.
Upon the question of jurisdiction in the Probate Justice to try the cause, there cannot be a doubt. The jurisdiction and mode of proceeding are expressly given and pointed out in sections, from 118 to 123, inclusive, of the Act concerning justices of the peace and constables. Rev. Stat. 332. The fact that difficulties may arise in the exercise of this jurisdiction by justices of the peace, which we apprehend will be less than counsel suppose, does not take away-the jurisdiction itself.
The only remaining question raised by the assignment of errors, and indeed the principal and most important one, relates to the measure of damages. Robertson, as constable, had failed to return an execution in favor of Cochran & Perry within ten days after its proper return day, and on account of this failure, the parties for whose use the suit was brought, insisted upon damages to the full amount of their execution and interest, while the plaintiffs in error contended that they were liable only for nominal damages in case they could show that Cochran & Perry had suffered no real injury by the neglect of the constable to return the execution, and offered evidence tending to show the insolvency of the defendant in execution, and that Cochran & Perry had sustained no real damage by the failure to return the execution within the time required by law. This evidence the Court excluded, and assessed the damages to the amount of the execution and interest.
The correctness of this assessment of damages depends upon the construction to be given to section 118, chapter 59, of the Revised Statutes, which is as follows : “ If any constable shall neglect or fail to return an execution within ten days after its proper return day, or if the demand, debt or claim be wholly or in part lost, or if any special damage shall arise to any party by reason of the neglect or refusal to act, or the misfeasance or nonfeasance of any constable in the discharge of any official duty, the party aggrieved may have his action in the Circuit Court, or when the amount claimed does not exceed one hundred dollars, before any justice of the peace of the proper county, against •such constable and his securities on the official bond of such constable, and shall recover thereon the amount of said execution, with interest from the date of the judgment upon which the original execution issued.”
To give this section of the statute a literal meaning, and allow damages to the extent of the execution and interest in all cases where the party aggrieved is authorized by said section to have his action, would, it is insisted, be absurd, and indeed impossible; as in the case of a neglect by the constable to serve a summons, it would be impossible to allow the party aggrieved in an action upon the constable’s bond, damages to. the amount of the execution, when in fact there was and had been no execution; wherefore it is contended, that as the last clause of the section fixing the amount of damages to be recovered, cannot be enforced in all the various cases where the party aggrieved is authorized to sue, it was improperly enforced in this case. What construction is then to be given to this section of the statute ? Shall the last clause, which declares that the party aggrieved shall recover the amount of said execution with interest, be construed to have no meaning? Such will be the consequence, if the construction contended for by the plaintiffs in error be adopted, for if this latter clause does not apply to a case where a constable neglects to return an execution within the ten days, it cannot apply to any case. The Legislature manifestly intended something by the language used, and it is the duty of the Courts to give effect to the legislative intention' as manifested by the words they have chosen. This can be done by holding that the amount of damages to be recovered for a failure to return an execution within the ten days, is the amount of the execution with interest, while the sum to be recovered in the other cases provided for in said section, is the amount of damages actually sustained. This construction gives effect to the whole section, and is undoubtedly in accordance with the intention of the Legislature. Upon a careful examination of the whole section, it will be seen that the word execution occurs but twice in it; once when speaking of a failure of the officer to return an execution within a certain time, and again in the last clause of the section, which declares the. amount to be recovered, and where it is prefixed by the word “sú;zé?,” thus referring back to the word as previously-used in the first part of the section. So that in strictness, the clause of the section declaring the amount of the recovery to be had, is confined, by the language used, to the clause having reference to the return of the execution.
We are fortified in the construction we have adopted, by the fact that the provision declaring that if a constable should fail to return an execution within a certain number of days of its proper return day, he and his securities should be liable upon his official bond to pay the whole amount of said execution with interest, as originally passed, constituted a separate section by itself. Gale’s St at. 424, § 10. But in the revision of the statutes, that and several other sections have been combined in one, which accounts for the apparent awkwardness of the section as it now reads in the Revised Statutes. If the original section had been preserved in the revision, there could be no question as to its proper construction.
The statute requires an execution to be returned within a certain time, and lest this requirement should be disregarded, provides that if a constable will continue to violate his duty by failing to return an execution for ten days after its return day, both he and his securities shall be liable to the party aggrieved for the full amount of the execution, and interest upon the judgment on which it issued. It was undoubtedly competent for the Legislature to impose such a liability for a failure by the constable to perform his duty, and the numerous cases cited to show that, as a general rule, the obligors upon a bond are only liable to respond in damages to the amount of the real injury occasioned by the breach complained of, can have no application to this case, because the Legislature has declared what the meas-, ure of damages shall be.
Being, therefore, of opinion that the failure by a constable to return an execution within ten days of its return day, renders himself and his seccrities liable upon his official bond for the amount due and unpaid upon said execution to the plaintiff therein, with interest from the date of the judgment upon which the execution issued, it follows that the Circuit Court did not err in refusing to admit evidence of the insolvency of the defendant in execution, as such evidence could not have varied the amount or measure of damages as fixed by the statute.
The judgment of the Circuit Court is affirmed with costs.
Judgment affirmed.
Caton, J. did not sit in this case.