
    Hendricks v. Shoemaker.
    July Term, 1846,
    Lewisburgr.
    1. Jurisdiction — Justices—notion—Constable and Sureties. — A justice of the peace has jurisdiction to hear u motion and to give judgment against a constable and his sureties, for the failure by the constable, to pay over money collected on exe-cutiqn.
    2. Same — Same—Same—Same—Amount — Prosecution of Other Motions. — The jurisdiction of the justice in such case is not dependent upon the amount of the execution, or of the j udgment on which the execution issued ; nor is it affected by the fact that the party prosecuting the motion, is at the same time prosecuting other motions of the same - kiuci/'against the same parties, before the same or anWother justice ; whatever may be the number or aggregate pecuniary amount of the several defaults of the constable.
    3. Notice — Default of Constable. — One joint notice to the constable and his sureties, upon defaults of the constable in several cases, is sufficient; and the justice should give a separate and distinct judgment in each case.
    In January 1844, Andy F. Hendricks gave a notice to Isaac Fuller and Benjamin Shoemaker, sureties of *David Ser-jeant, late a constable of Russell county, that he would on the 27th day of January 1844, move Thomas Dickinson, a justice of said county, for judgments against them upon a number of claims, of which the notice contained a list, which had been placed in the hands of Serjeant, then a constable of the county of Russell; and which claims the notice alleged Serjeant had collected, and failed to pay as the law directs.
    When the case came on before the justice, he gaye E separate judgment upon each claim, against the sureties; the aggregate amount of which judgments was above 600 dollars. Shoemaker then applied to the Judge of the Superior Court of Russell county for a writ of prohibition, forbidding Hendricks and all others, from proceeding on these judgments. The ground on which the prohibition was asked is, that the justice had not jurisdiction to give these judgments, amounting to six or seven hundred dollars, on one notice.
    The writ of prohibition was granted; and when the case came on to be heard before the Superior Court, the writ was made absolute. From this judgment Hendricks, having had the facts spread upon the record, applied to this Court for a super-sedeas, which was allowed.
    B. R. Johnston, for the appellant.
    The first act authorizing a motion against a constable, was the act of 1803, Old Rev. Code, vol. 2, p. 4. This authorizes a motion before a justice of the peace. The act of December 23d, 1806,. Id. p. 14, gives the motion against a constable’s sureties; but it was to be made to the County Court which was to decide it without limitation or appeal, though there might be cases amounting to more than SO dollars, the sum, then sufficient, to authorize an appeal from that Court. The act of 1819, 1 Rev. Code, §31, p. 253, transfers the jurisdiction to the justice. On the plain terms of this law, the jurisdiction is exclusive.
    *In this case, although there is but one writing, there is a notice in several cases, each of which was to be heard separately, and depended upon distinct proof; and in which there was necessarily a separate judgment. And the aggregate amount of all the judgments cannot have any effect upon the jurisdiction of the justice, unless the Court is prepared to say that no man shall have two claims in the hands of a constable at the same time.
    The Attorney General, for the appellee.
    The responsibility of the sureties of a constable is by bond. If this responsibility is enforced by a suit upon the bond, the first judgment is for the penalty, and the proceeding to enforce any subsequent liability is by scire facias: and when an amount equal to the penalty is reached, the sureties are no farther responsible. But if these sureties are to be subjected to the payment of hundreds or thousands of dollars, on such a receipt as that given in this case, by motion before a justice of the peace, whose Court is not a Court of Record, they must be exposed to great inconvenience and loss.
    The general rule is, that if there are several causes of action which may be united, they shall bé united; and the action shall be brought in a Court of Record, where the parties may have counsel and an enduring record of the case. See Hutson v. Howry, 2 Va. Cas. 42; Bac. Abr. Prohibition, letter K; 1 Ventr. R. 6S, 73; 2 Keeble’s R. 617. But this act giving jurisdiction to the justice to hear the motion on notice, is viola-tive of this principle of the common law, and should therefore be construed to apply to cases where the sum is under 20 dollars, which is the general limitation of the jurisdiction of a justice, 1 Rev. Code, ‘i 20, p. 151, leaving the party to proceed in other cases in the proper Court. Dwarris on Stat. 9 Haw Hib. 662, 695, 698, 750.
    
      
      Jurisdiction — Justices of the Peace. — The principal case is cited in James v. Stokes, 77 Va. 233, 240.
    
    
      
      Notice — Default of Constable. — One joint notice to a constable and sureties, upon default of the constable ÍB- several cases, is sufficient, and separate judgrments should be given. For this proposition, the principal case is cited in County Court v. Miller, 34 W. Va. 793,12 S. E. Rep. 1078 ; Board v. Parsons, 22 W. Va. 312 ; Shepherd v. Brown, 30 W. Va. 20, 3 S. E. Rep. 190. See extensive foot-notes to Monteith v. Com., 15 Gratt. 172, and Board of Supervisors v. Dunn, 27 Gratt 608, in which the authorities upon this subj ect are collected.
    
   * BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that by the express provisions of the 31st section of the act concerning the County and other inferior Courts, and the jurisdiction of justices of the peace, 1 Rev. Code, p. 253-4, the party injured by the failure of a constable to pay over money received by him on an execution issued b37 a justice of the peace, may recover the same, with interest and costs, by motion against the constable and his securities; and any justice of the peace of the county in the Court of which such constable’s official bond is deposited, is empowered to hear such motion, and render judgment thereon. The jurisdiction thus conferred upon the justice does not in any wise depend upon the value of the execution or of the judgment upon which it has been issued; nor can it be at all affected by the circumstance that the party prosecuting such motion is at the same time entitled to and actually prosecuting other motions against the same constable and his securities, before the same or any other justice, founded upon the failure of such constable to pay over other moneys received by him upon other like executions. The remedy being given for each separate default of the officer, the jurisdiction of the justice cannot in any instance be ousted by the number or aggregate pecuniary amount of the several defaults. And the Court is further of opinion, that in the present case the motions before the justice, and his judgments thereupon in the proceedings mentioned, having been separate and distinct, it is no objection to the jurisdiction which he exercised, that said motions were prosecuted under one joint notice. The Court is therefore of opinion, that the Circuit Court ought not to have awarded the prohibition sought by the defendant in error, which opinion renders it unnecessary to consider the other alleged grounds of error in the judgment of the Circuit Court. Wherefore it is considered by the Court, that the said judgment of thetCircuit Court be ^reversed and annulled, and that the plaintiff in error recover against the defendant in error his costs by him expended in the prosecution of his writ of error and supersedeas here. And this Court proceeding to render such judgment as the Circuit Court ought to have rendered, it is further considered, that the rule Upon which said prohibition was founded be discharged, and the petition therefor dismissed; and that the defendant therein recover against the plaintiff therein his costs expended in the defence thereof. Which is ordered to be certified to the said Circuit Court.  