11 Ala. 149 | Ala. | 1847
The act of 1829 provides that if any justice of the peace shall fail or refuse to pay on application any money received or collected 'by virtue of his office, to ‘the plaintiff, &c. judgment may be entered against him upon motion before any other justice of the peace of the county in which he may reside, for the amount so received by him, with ten per cent, a month damages thereon — three days’ previous notice being given of the motion: “Provided, the amount of the judgment so rendered shall not exceed $50 ; and in all cases where the amount exceeds that sum, the same remedy shall be had before the county or circuit courts, with damages thereon as aforesaid.” [Clay’s Dig. 362, § 18.] When this statute was passed, there was no law which required justices of the peace to give bond and security for the performance of their official duties; but the act of 1839 first made it necessary. Yet neither that nor any subsequent enactment extended the summary remedy against justices, to their sureties; and certainly there is no principle of construction which warrants its extension by the court.
Although the notice was addressed to the justice and his sureties, yet it was entirely competent to have submitted a motion against the justice alone, but having included all in the motion, the plaintiff gave form to the proceeding, and made that joint which might have been either joint or several at his election. It was competent for the defendants to have demurred to the motion, because it was unauthorized against the sureties, and for this cause the court should have sustained the demurrer. The judgment in its result is proper, though if the court repudiated the case upon the ground that the balance of the money alledged to be in the justice’s hands did not exceed $50, when it is obvious that the damages sought to be recovered, if added to the balance would make a sum largely more, the reason is insufficient to sustain its judgment. The damages, like interest, are merely acces-
