McCurdy v. Brown

• Decision Date: 31 January 1844
• Citation: 8 Mo. 549
• Parties: MCCURDY v. BROWN AND GIBSON.
• Court: Missouri Supreme Court

8 Mo. 549

MCCURDY

v.BROWN AND GIBSON.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM JASPER CIRCUIT COURT.

WINSTON and PHELPS, for Appellants. The act respecting Constables, § 8, p. 117, authorizes a proceeding by motion against a constable, for failing to return any execution. The act of 1840-41, pp. 31, 32, § 5, provides, that “““persons injured by the neglect or misfeasance of any such officer may proceed against such principal, or any one or more of his securities, jointly or severally, in any proceeding authorized by law against such officer, for official neglect or injury.” The failing to return the execution was official neglect of the constable. The law gave the remedy by motion against the constable only. The last act extends this remedy to the injured party, against the constable and his securities. The law nowhere requires a bond for costs to be filed in a proceeding by motion against a constable.

HENDRICK and RICHARDSON, for Appellees. The judgment of the Circuit Court, in dismissing the said motion, was correct, and should not be disturbed, for the following reasons: because, 1. The proceeding by motion, against the constable and his securities, for double the amount of the execution, is not authorized by law. Digest Laws of Mo. p. 117, § 8; also, p. 368, §§ 20-23.2. The recovery by motion against a constable, for failing to return an execution, is double the amount of the same; but in no case can the recovery against the securities exceed the amount of the execution, with interest thereon at the rate of 100 per cent. per annum. 3. The plaintiff failed to file a bond for costs. Rev. Code of 1835, p. 127.

SCOTT, J.

This was a proceeding by motion, instituted by McCurdy, against Brown, a constable, and Gibson, his security, on his official bond, under the act of January 4th, 1841, entitled, “An act the better to secure the liability of county officers on their official bonds,” for the failure of Brown, the constable, to return an execution. McCurdy recovered against Brown and Gibson double the amount of the execution. An appeal from this judgment was taken to the Circuit Court, where, on motion of Gibson and Brown, the cause was dismissed, because no security for costs had been given, and because the act regulating Constables did not give such proceedings against the constable and his sureties.

The 5th section of the act of 4th January, 1841, provides, that persons injured by the neglect or misfeasance of any county officer may proceed against the principal, or any one or more of his sureties, jointly or severally, in any proceeding authorized by law against such officer, for official neglect or injury. The 8th section of the act concerning Constables prescribes, that if any constable shall fail to return any execution, he shall forfeit and pay to the plaintiff double the amount, to be recovered by motion, before any justice of the peace of his township, giving five days' notice thereof, in writing, to said constable. This proceeding against the constable and his surety was founded upon the two foregoing provisions of law.

In regard to the question as to the security for costs, we are of the opinion, that the first section of the act concerning Costs does not apply to this proceeding; it is neither within its letter nor spirit. This is not a proceeding upon an official bond. The act was intended for cases in which the party used the name of another in suing. Where the name of the real plaintiff is not upon the record, as a party, as where an official bond is given to the State, a person aggrieved by the violation of its conditions, bringing a suit, does it in the name of the State; in such cases, it is necessary to give security. So it may be when bonds are given to officers for the use of another. In these cases, inasmuch as the real party does not appear as such upon the record, and the name of the State or officer is used for form's sake, security for costs is required. In the case under consideration, the party who instituted the proceedings appeared as plaintiff on the record. Neither the State nor any officer was the formal plaintiff: moreover, the section above referred to evidently contemplates suits commenced in the Circuit Court, and in its terms there is no reference to justices' courts; nor is the necessity of applying that act to justices' courts conceived, as the act regulating those courts has provided when and in what cases security for costs shall be given. But it is a conclusive answer to the objection of a want of security for costs, that this is no suit or proceeding on an official bond.

As to the question, whether the constable's securities are liable, under the 5th section of the act of 1841, to the penalty imposed on constables, for failing to return an execution: by the 8th section of the act relative to Constables, we are inclined to the opinion that they are not. When a statute gives a penalty against a constable or other officer, and does not make the securities liable thereto, by express words, we know of no principle which would subject them to its payment. The obligation of sureties is always construed strictly, and never extended beyond the fair scope and import of its terms. The act of 1841 takes effect from and after its passage. The fifth section of that act does not profess to act prospectively on bonds thereafter given, but it relates to bonds then in force, as well as those to be given in future. When the security in this case executed the bond by which he is bound, the liability he thereby incurred was fixed and ascertained by...