State ex rel. Reed v. Boutwell

86 So. 454, 123 Miss. 666

Opinion

Cook, P. J.,

delivered the opinion of the court. '

The declaration was filed in the circuit court of Lawrence county by the appellant against D. D. Boutwell and the sureties on his bond. The declaration avers that a certain justice of the peace of said county,, upon the complaint of appellant, required the said Boutwell to enter into a certain bond, in the sum of two thousand, five hundred dollars, conditioned to keep the peace towards the person and property of appellant.

The declaration further avers that the said Boutwell breached the bond on the 9th of November by willfully and feloniously shooting at the appellant, and prayed judgment against the defendant and his sureties.

-The defendant demurred to this declaration, assigning ten grounds why the action could not be maintained, viz.:

“(1) The declaration states no cause of action.

“(2) The bond sued upon was to keep the peace in so far as the public is concerned, and the plaintiff’s alleged usee for whose benefit this suit is brought has no pecuniary interest therein.

“(3) It was not the contemplation of the bond nor of the statute providing for peace bonds that any private, personal, and pecuniary benefit should be- derived therefrom by any person.

“(4) The bond sued upon is one given and required in a criminal proceeding based upon statutes, and the remedy provided by the statutes is a writ of scire facias on the order of the court or district attorney,, and this remedy prescribed, by the statutes is sole and exclusive, and no recovery may be had on the bond for the private benefit of an individual.

“(5) The method pointed out by the statutes (sections 1548 to 1561, Code of 1906) is mandatory as to the procedure, and the remedy sought to be enforced by this suit is not embraced in the provisions of these sections of the Code.

“(6) The bond given by the defendants is a bail bond on which the defendant, D. I). BoutAvell was enlarged on bail, and it is so designated by section 1550 of the Code of 1906.

“(7) The bond ivas required to be given for the benefit of the public, and the public is the sole and only beneficiary under the bond, its enforcement and liability being left to the judgment and discretion of the. court as to the penalty and fine imposed, and the recovery, if under the bond, is in the nature of a fine and penalty according to section 1557 of the Code.

“(8) The action on a forfeited peace bond is a statutory action, and the statutory proceeding and remedy must be strictly followed.

“(9) The reasonable and proper construction of the statutes requiring a peace bond such as the one sued on in this case does not give to these plaintiff’s alleged usee in this case any cause of action on the bond, nor does it give the state of Mississippi any sncli canse of action for Ms use and benefit.

“(10) The state of Mississippi was under and is under no civil liability for damages on account of personal injuries o sustained by the plaintiff, Alonzo Reed, by assault and battery or otherwise, and its purpose in securing and requiring a bond was not to protect it and save it harmless as against any personal action by Reed, but to insure and secure the peace of the community and of society, and the right of Reed to claim compensation for personal injuries was not and. is not within the contemplation of the bond orjlie statute.”

The statutes now in existence, spealring. in a general sense, have long existed in this state, and this suit is the first of its nature to find its way to this court. No member of this division can recall a similar case coming under his observation as practitioner at the bar.

The sections of the Code of 1906 which refer to peace bonds are 1518-1561, 1571, and 1572. The statutes provide for the forms of the affidavit, the bond, and the judgments on a forfeiture of the peace bond, and there is not a word which warrants the construction placed upon the statutes by the appellant. The entire scheme was designed as a preventive measure, and the penalty for a breach of the bond was measured by the amount of the penalty of the bond. In other words, the statutes were designed to prevent breaches of the public peace, and a failure to keep the peace forfeited to the state the amount of the bond, that much, no more and no less. A different construction of the statutes would not only do violence to the letter and spirit of the law,, but the appellant’s construction of the law would establish a new industry in the state for the profit of individuals rather than a scheme to preserve the public peace.

Affirmed.