
    Andrew Dehn v. Joseph Heckman et al.
    The plaintiff, as indorser of two promissory notes, having paid the amount of judgments on the notes, the same not having been collected of the maker, through the negligence of a justice of the peace with whom left by the owner for judgment and execution; and such indorser having, on payment of the judgments to the owner taken an assignment of Ms right of action against the justice and his sureties, on Ms official bond; Held,
    1. The plaintiff was not entitled to recover damages, for the neglect of the justice, sustained by the plaintiff, by virtue of his relation as indorser of the notes.
    2. The holder and owner of the notes alone had the right of action against the justice for the neglect of duty by which the failure to collect the amount of the judgments of the maker of the notes had occurred.
    3 The rule of damages, if the action had been commenced by such owner of the notes, would have been the actual loss occasioned to the owner by such neglect of the justice; and the plaintiff, as assignee of such right of action, could recover only the same amount to which the owner was legally entitled .at the time of making such assignment.
    Error to the district court of Stark county.
    The plaintiff Dehn commenced Ms action in the court of common pleas of Stark county, against Joseph -Heckman, as principal, and Hiram B. Wellman and Kent Jarvis, as his sureties, upon the official bond of said Heckman as justice of the peace, to recover damages for alleged official misconduct of Heckman within the condition of his bond.
    The petition states that, in October, 1853, Heckman was elected and qualified as justice of the peace in and for the township of Perry, in the county of Stark, and with said sureties executed the bond, in the sum of two thousand dollars, conditioned according to the requisitions of the statute, and that Heckman delivered the bond and entered upon the discharge of his duties as such justice of the peace in and for said township; and that one John Markey, holding two promissory notes, one for $131 40, and the other for $136 93, upon which Charles R. Cummins and Thomas Cummins, partners as Cummins & Co., were liable as principals, and the plaintiff, Dehn, as indorser, bearing date October 1, 1853, and at the instance of the plaintiff, and for his benefit, on the 8th day of June, 1854, placed both notes, then past due, in the hands of Heckman, at his office in Perry township, where the said Cumminses resided, for collection, they then and there having property, subject to execution, sufficient to satisfy the amount due upon said notes; and that Markey then and there received from Heckman his official receipt, expressing his undertaking as such justice to proceed and collect said notes with reasonable diligence; and that Markey directed Heckman to proceed on the notes to judgment and execution immediately; but that Heckman disregarded said instructions until the 14th day of July, 1854, when he procured the principals to confess judgments, which he then rendered for $169 43, on one of the notes, and for $137 78 on the other, and for costs against said Cumminses; and that the justice neglected to issue execution upon said judgments for ten days; by reason of which delay of judgment and execution no part of said judgments could or can be collected of the principals, but the whole amount became in law collectable from, and has been paid by, the plaintiff Dehn, to Mar-key, amounting to $329 87, and that Markey had assigned to the plaintiff his, Markey’s, right of action against the justice, Heckman, and his sureties, for said negligence and misconduct in office.
    The plaintiff claims to be entitled to recover, as damages, the amount by him paid to Markey, in satisfaction of the judgments, and asks judgment for the same on Heckman’s official bond.
    Copies of the bond and receipt are filed as exhibits with the petition.
    The bond is of the following tenor:
    “ Know all men by these presents, that we, Joseph Heck-man, Hiram B. Wellman and Kent Jarvis are held and firmly bound unto the state of Ohio in the sum of two thousand dollars, for the payment of which we jointly and severally bind ourselves. Sealed by us and dated this fourth day of November, A. D. eighteen hundred and fifty-three. Whereas, the said Joseph Heckman hath been duly elected and qualified, and commissioned a justice of the peace in and for the township of Perry and county of Stark, in the state of Ohio, for the term of three years from the seventeenth day of October, A. D. 1853. Now the condition of this obligation is such, that if the said Joseph Heckman shall well and truly pay ever according to law all moneys which may come into his Hands by virtue of his said commission, and shall also well and truly perform every ministerial act that is enjoined upon him by law as such justice of the peace, then this obligation to be void, otherwise to be and remain in full force and effect.
    “Joseph Heckman, [seal],
    “ Hiram B. Wellman, [seal],
    “Kent Jarvis, [seal].
    “ Accepted:
    “ Louis Pangbukn,
    “ Frederick Snyder,
    Trustees.”
    The receipt reads as follows :
    “ Received, of John Markey, two promissory notes for collection made by Cummins & Co., payable to the' order of Andrew Dehn, for one hundred thirty-one and Tyo dollars, payable'one day after date of October 1, 1853 ; and the other for one hundred sixty-six ~¶, payable one day after date of April 22, 1854, and both indorsed Andrew Dehn.
    “Joseph Heckman, J. P.”
    The defendant, Heckman, answers, denying any negligence p states that he substantially conformed to the instructions given by Markey; denies that plaintiff has any right of action against him, and denies having ever executed the official bond set forth in the petition; but sets forth in his answer a copy of the official bond executed, which has only the following condition, to-wit: “ the condition of this obligation is such, that if the said Joseph Heckman shall well and truly pay over according to law all moneys which may come into his hands by virtue of his said commission, then this obligation to be void, otherwise to be and remain in full force.”
    The defendants, Jarvis and Wellman, filed their demurrer,, and at the same time made answer to said petition, denying having signed any such bond as is described in said plaintiff’s petition as the official bond of said Joseph Heckman as said justice of the peace, etc.
    The case having been taken to the district court by appeal, came on for trial before a jury at the May term, 1858.
    
      The plaintiff gave evidence tending to show that, at the time of leaving the notes for collection with Heckman, and at the time judgments thereon were rendered, Cummins & Co., the principals, had property subject to execution sufficient to fully satisfy the judgments, but that at the expiration of the ten days, and at the time of issuing execution thereon, they had made an assignment of all their property, and had become entirely insolvent.
    The plaintiff also proved that he had been compelled to pay. and did pay, the full amount of the judgments, and that Markey thereupon assigned to him his said judgments against ■said Cummins & Co.; also, Ms right of action against Heck-man and his sureties.-
    No proof appears to have been offered in relation to said •official bond.
    After the parties had concluded their evidence and arguments, the court instructed the jury, among other things, that if the default of -the justice occurred while Markey was the holder and owner of the notes.left with the justice, for collection, the plaintiff could not, by virtue of his relation to the notes as indorser, sustain this action against the defendants. 'The court further charged the jury that if at the time the notes were left for collection, by Markey, they find from the proof that plaintiff was the owner of the notes, the act of Markey in leaving the not.es might be regarded as the act of the agent of the plaintiff, and that the action might in that -case be maintained by the plaintiff. The court also charged that if the right of action acquired by Markey had been assigned to the plaintiff prior to the commencement of the suit, the plaintiff would, in such ease, be entitled to collect the sum, ■and no other damages than those to which the proof shows Markey would be entitled if he had brought the action in his -own name.
    The plaintiff, by his counsel, excepted to the instruction :So given to the jury; and a bill of exception was tendered and allowed, and made part of the record. The verdict of the jury and the judgment of the court were in favor of the plaintiff; but for only nominal damages (five cents); and the court thereupon adjudged that each party should pay their own costs.
    The plaintiff insists that the court erred in charging the jury that he was not entitled to maintain said action upon said justices’ bond, by. virtue of his relation to said promissory notes as indorser thereof; and for this alleged error has filed his petition in this court to reverse the judgment of the district court.
    
      Brown and Meyer, for plaintiff in error.
    
      Bierce and Pease, for defendants in error.
   Suture, J.

Inasmuch as the defendants denied the execution of a bond, with the condition set forth in the petition, and no proof of such bond appears from the record to have been made on the trial; it is to be here taken for granted that the defendants only executed a bond with the condition expressed in their answer. That condition was to pay over, according to law, all moneys which might come into his, Heck-man’s, hands, by virtue of his said commission as justice of the peace. But the petition does not charge the justice with having neglected to pay over any money so coming into his hands; nor was there any proof of any such delinquency on the part of the said Heckman. It follows, therefore, that even if the instructions given the jury by the court were erroneous, inasmuch as the plaintiff could not have recovered upon his averments and proof, he has in no respect been prejudiced by such charge so given to the jury, however contrary to law the same might have been.

But can it, in fact, be said that the court erred in its instruction so given to the jury ?

The bond prescribed by the statute as the official bond of a justice of the peace, neither imposes any additional liability upon the justice, nor extends to any third person any new right of action against him. Independent of the execution of the bond, the justice was liable to the party in damages, from whom he wrongfully withheld money collected for him. and neglected to pay over the same according to law; and so, too, the justice w.as liable, independent of his bond, to the party thereby injured, for neglecting to do and perform for such person any ministerial act enjoined by law upon such justice ; and a right of action existed, in either case, in favor of the party whose right had been so denied by the justice of the peace, independent of the bond. The only object of the bond was to afford the party in whose favor such right of action might arise, security for redress. T.he action may first be brought against the justice of the peace, and judgment obtained against him individually for his delinquency of duty, and afterward an action may be brought upon the bond to charge the sureties for the same; or an action 'may, in the first place, be brought on the bond to recover for such delinquency as in this case ; but in either case the action can only be commenced by the party so having a right of action against the justice. But, as in all cases of liability to an action, the liability is only to. the party having the right of action, between whom and the justice of the peace there is a privity of contract in that regard. Thus, by section 155, of the justice’s act, it is provided, that, “ It shall be the duty of the justice,” in a case therein named, at the expiration of ten days from the entry of the judgment, to issue execution without a demand, and proceed to collect the judgment unless otherwise directed by the judgment creditor.” But this duty is only due to the judgment creditor, to the party entitled to have the money so collected; and he alone has the right of action given by’ the neglect of the justice to discharge the duty so due him.

It is very possible, owing to execution not having been issued and the money collected by the justice for the judgment creditor, other persons may be thereby disappointed in the expected receipt of the same from the judgment creditor, and may have been thereby injured; but whatever claims such persons may have upon the judgment creditor, it is very obvious they can have no legal claim, no right of action, against the justice of the peace for that neglect. Such neglect of duty on the part of the justice must be regarded as to such third persons, as mere “ damnum absque injuria.” And such is precisely the relation of the present plaintiff to the alleged right of action in this case. • In consequence of the justice not collecting the money from the principals, the plaintiff complains that he, as surety, had to pay the sum; but his relation to the cause of action arising against the justice is the same that it would have been, if the delinquency in collecting the claim were chargeable upon an attorney employed by the creditor. The liability of the attorney in the supposed case, and of the justice of the peace in this case, would only be to respond to the owner of the claim, and in the amount of damages occasioned him by such delinquency.

The record shows that in this case the judgment creditor, the owner of the promissory notes left with the justice, although he failed to collect the judgments of the principals, Cummins & Co., did, finally, in fact, recover the full amount of said judgments of this plaintiff, as their, surety; and that he thereupon assigned his right of action against the justice and his sureties to the plaintiff. The plaintiff, therefore, had the same right to recover a-nd for the same amount of damages, that Markey was entitled to recover from Heckman for his neglect to collect the amount of the said judgment from the’ said Cummins & Co.; and even if the condition of the bond charged in the petition had been proved, the record does not show that amount to have been any definite, sum. The verdict of the jury wan, therefore, very properly, for nominal damages merely.

We perceive no error in the record, and the judgment of the district court is approved.

Scott, C.J., and- Peck, Gholson, and Beinkerhoee, J J., concurred.  