State v. Luckey

51 Miss. 528 | Miss. | 1875

Tarbell, J.,

delivered the opinion of the court.

Suit before a justice of the peace, upon the official bond of another justice of the peace, for breach of the conditions of such bond.

The bond is in the penalty of $2,000; damages claimed, $150. There was recovery before the justice and a jury for $100, and then an appeal to the circuit court, where the suit was dismissed, on motion of defendants, on the ground that the justice had not jurisdiction in such case. Hence a writ of error.

The only ground relied upon to reverse the judgmenkis the action of the court in dismissing the cause for want of jurisdiction in the j ustice of the peace.

The action is not upon the bond for a sum certain nor is the bond for the payment of a liquidated amount, or a “ bond for the payment of money,” as in § 824 of the code, but the suit is brought to recover damages for an act in the nature of a tort. This indicates the distinction upon which the case at bar ought to be determined.

As a general rule, in an action of debt upon a bond for the payment of money, the judgment will be for the penalty of the bond, to be discharged by the payment of the amount found to be due. Code, § 824.

The case at bar is not of this character, and hence its solution. Shattuck v. Miller, No. 1223, MSS. Op., not yet reported, is in point, upon principle. This view is not in conflict with § 666 of the code, arid is in harmony with § 1302, which defines the jurisdiction of justices of the peace.

The solution of this case is not- only consistent with our own simple but excellent system of jurisprudence, but in accordance with the most approved authorities. See Stone v. Murphy, 2 Clarke (Iowa), 35; Boomer v. Laine, 10 Wend., 525; O’Neil v. Martin, 1 E. D. Smith, 404, are especially in point, as are 2 Va. Cases, 42; 1 Munf., 555; 1 J. J. Marsh., 174; 8 B. Mon., 55, 1 Rob. Prac., 375, and 1 Ch. Pl., 109, 114, 115, 373, 374, 375. See also, 2 Tidd’s Pr., 879, 880; 2 Steph. Com., 159, 160; 5 Gilm., 559; 28 Ill., 63; 69 N. C., 140; 17 S. & R., 367; 1 Ark., 74; 15 id., 33; 5 Blackf., 357, and 33 Mo., 555.

In some of the states, jurisdiction in this class of cases, of suits upon various bonds, depends upon the special legislation.

The general rule in Indiana, is, that the jurisdiction of a justice of the peace depends upon the sum demanded at the conclusion of the declaration.

In principle, this is the rule declared in Shattuck v. Miller, supra. The same general rule is declared by the courts of Iowa, and in Stone v. Murphy, supra, it is held to be especially applicable in determining the jurisdiction of justices of the peace. The action in the case last cited was upon a penal bond. The chief justice, delivering the opinion of the court, said: “ The first error complained of by the defendant, in his affidavit, which was the basis of proceeding for the writ of error, was, that the suit being on a bond for three hundred dollars, the justice had no jurisdiction. The plaintiff claimed, however, only one hundred dollars. The amount claimed is the criterion of jurisdiction and not the amount that may appear to be due or owing on the instrument declared upon.” A like rule prevails in several states.

The judgment of the circuit court, dismissing the appeal for want of jurisdiction in the justice of the peace, on the ground alleged, was wrong.

Judgment reversed and cause remanded.