
    POLLOCK vs. HUDGENS.
    1. The circuit court has jurisdiction over all actions instituted against a constable on his offi~ dal bond, regardless of the amount claimed.
    2. In suits upon a constable’s bond, the circuit court and justices of the peace have concurrent jurisdiction, where the amount claimed does not exceed ninety dollars.
    APPEAL FROM CIRCUIT COURT OF HOLT COUNTY.
    Wilson for appellant.
    The only question in this case is whether appellee was entitled to recover the aforesaid interest upon the amount of his execution. The record sho-ws that the appellant excepted to the opinion, of the court below in giving said instruction, and also in overruling his motion for a new trial. There are three statutes, the constable’s law, Statutes of Mo., 1835, 117, sec. 8; the execution law, Hid. 260, sec. 52, and the law regulating justice’s courts, Hid. 368, sec. 22 ; providing different remedies, and imposing different penalties on officers delinquent in returning executions, neglecting to levy, &c. The first, gives double the amount of the execution ; the second, the full amount thereof, and the third, the full amount thereof with interest at the rate of one hundred per centum per annum. il Either of these statutes may be putin force without bringing its provisions in conflict with the other. They are not repugnant, as they provide different remedies and impose different penalties. The party injured has the liberty of choosing the nature of his remedy, and the nature ol the remedy adopted, will show the penalty sought.’’ Hart vs. Robinett, 5 Mo. Rep. 15. The constable law confines the remedy to a summary proceeding, a notice before a justice’s court in which the plaintiff' should specify the amount of his execution, the breach of duty by the constable, and the amount claimed by reason of such breach, to wit: double the amount of the execulion. The justice’s law confers a like remedy, where the plaintiff should make like specifications, claiming the amount of the execution with interest thereon at the rale of one hundred per centum per annum. Of these two remedies, justices have exclusive original jurisdiction when the sum sought exclusive of interest does not exceed ninety dollars. But the appellee will insist that the 23d section of the justice’s law brings this case within the provision of that statute which was only intended to extend the jurisdiction of justices upon suits upon constable’s bonds, where the amount claimed did not exceed ninety dollars, in which case plaintiff should file before the justice the constable’s bond, or a copy, together with the amount claimed, so as not to exceed ninety dollars, and assignment of a. breach of the bond for which the same was claimed. The remedy under the execution law is by an action of debt (on case) upon the constable’s bond in the circuit court as in this case assigning the usual breaches, and claiming the whole penalty of the bond in this case, five thousand dollars, apd recovering if at all the amount of the execution which the constable had failed to return, or with which he was otherwise derelict in duty, inasmuch, then, as the plaintiff below has chosen his re.nedy under the provisions of the execution law, his recovery should be confined to the penalty it provides which is the amount of the execution.
    Stringeellow for appellee,
    Tlie only objection made to the verdict and judgment, is that the plaintiff below recovered one hundred per cent per annum from the time the execution ought to have been returned. This action is founded upon the 23d section of an act to establish justice’s courts of 1835, Rev. Code, page 3B8, which gives this recovery. The proceedings under 9th section of act respecting constables, page J17, are only to be had before a J. P., and the provisions of that act had no reference to this suit, nor are the provisions of that act regulating executions applicable to remedies against a constable, the provisions of that act apply only to executions issued from a court of record, except those especially made applicable to executions from a justice of the peacg, by the 37th section, which has no reference to the remedies against the officers for failing to execute their duty on executions.
   McBride, judge,

delivered the opinion of the court.

Prince L. Hudgens brought his action of debt in the Holt circuit court, in the name of the State of Missouri to his use, against Pollock, the defendant, as" principal, and others as his securities, on his constable’s bond. The plaintiff obtained judgment below, which the defendant moved to set aside, and for a new trial, which were refused, and he excepted and appealed to this court.

The declaration contained several counts assigning the usual breaches in such cases. The evidence went to show that the plaintiff having obtained a judgment before a justice of the peace in said county, against one Mitchell, for ‡25 debt; $4 25 damages, and $2 18 costs, sued out execution thereon, and placed the same in the defendant’s hands for collection, and that said defendant levied the same upon a wagon as the property of Mitchell, and afterwards permitted Mitchell to remove the same out of the county, without sale, and then returned the execution “not satisfied for want of sufficient property to levy on.” The wagon was estimated to be worth from fifteen to forty dollars. Judgment for #119, being one hundred per cent per annum.

Several instructions were asked of the court which'it is not necessary to notice,as but one question is raised in this court for our determination, and that is the right of the plaintiff to recover the amount of his execution with one hundred per cent per annum thereon.

The legislature has given several remedies against a constable for a failure to discharge his duties, either of which a party aggrieved may pursue at his election. The first act on the subject is to be found in the Rev’d Code, 1835, p. 117, § 8, which subjects the constable to pay double the amount of the plaintiff’s debt, where he fails to pay over when demanded, money received by him, or when he fails to return an execution according to the command thereof, to be recovered by motion before a justice of the peace. The second is at page 260, S. 52, and provides that if any officer having an execution in his hands, shall neglect or refuse to execute the same, or, having levied the same, shall fail to sell the property levied upon, or shall not return the writ, or make a false return thereof, he shall pay the whole amount of such execution. The third remedy given by law is at page 368, § 20, which provides that if the constable fail to make return of the execution according to the command thereof, or if he maleé a false return, the justice shall, upon the demand of the party injured, issue a summons against the constable, &c. The twenty-first section prescribes the manner of proceeding before the justice. The twenty-second section provides that if the constable fail to appear, or, appearing, fail to show good cause to the contrary, the justice shall render judgment against him for the amount due by the execution, &c., with interest thereon, at the rate of one hundred per centum per annum, from the time such execution ought to have been returned, &c. Section twenty-three gives the party injured the right to proceed against the constable as above directed, or he may institute a suit against him and his securities on his official bond, and in such suit shall be entitled to the like recovery, as upon a summons against the constable, and suits on the bond may be brought before a justice of the peace, where the amount claimed does not exceed ninety dollars.

The action in this case was brought under the law last above referred to, and therefore it is not important to inquire what would have been the parties rights under the two preceding acts, as no proposition is better settled than that, where a party has two or more remedies given him by law, he may pursue that one which, under all the circumstances of the case, he deems most advantageous to him. The latter clause of the twenty-second section gives to a party injured the right of bringing his action before a justice of the peace on the constable’s official bond, where the amount claimed does not exceed the jurisdiction of a justice of the peace, but this does not, I apprehend, divest the circuit court of its general jurisdiction in such cases. The language of the provision does not evince such an intention on the part of the law makers, but it is only permissive, giving to the plaintiff the right, if he sees proper, in such case to bring his action before a justice of the peace.

We are therefore of opinion that the action was properly brought in the circuit court, and that the judgment for one hundred per cent per annum on the amount claimed from the time the same ought to have been paid, is recoverable under the statute.

The other judges concurring, the judgment of the circuit court will be affirmed.

Scott, judge.

I concur in affirming the judgment, but dissent from that portion of the foregoing opinion which maintains that for a sum less than fifty dollars, suit may be brought on the constable’s bond in the circuit court. There is no reason for subjecting constables and their securities to that more expensive mode of procedure than all others; and the statute is express that the circuit and justice’s courts shall only have concurrent jurisdiction in actions of debt when the sum in dispute exceeds fifty, and is less than one hundred and fifty dollars. The opinion is moreover opposed by the case of the State of Missouri, to the use of Poor vs. Steel. 11 Mo. Rep., 553, in which it was decided by a full court, that when the sum claimed of the constable is less than fifty dollars, a suit on his official bond can only be brought in a justice’s court.  