
    A. Fowler et al. v. R. M. McDaniel, Adm’r.
    1. Justice of the Peace. Practice. S, a justice of the peace, before whom a suit was pending, was sick on the day of trial and procured ' M, another justice of the same district, to try the case. Upon the judgment rendered by M, S afterwards issued execution. Held, the whole proceeding was regular and the execution was neither void nor ' voidable.
    2. Same. Jurisdiction. In a suit before a justice of the peace for damages for the breach of an official bond, the amount of the damages claimed and not the amount of the penalty of the bond, determines the jurisdiction.
    Code cited: Section 772.
    
      3. CoNSTABMB. Failure to return execution. Measwe of damages. In an action against a constable for failing to return an execution, the plaintiff conclusively makes out his case by showing the reception of the execution and the failure to return it. The measure of damages is the amount of the judgment. It is not competent for the officer to show that when he received the execution the debtor was insolvent.
    Case cited: Webb v. Armstrong, 5 Hum., 380.
    FROM MONROE.
    Appeal in error from the judgment of the Circuit Court, January Term, 1870. E. T. Hale, J.
    Briant & Richmond for plaintiffs in error, insisted:
    1. Upon a motion against an officer for failing to return an execution, the plaintiff, if successful, may recover the amount of the judgment. But this is purely statutory and is confined. to cases of motions.
    2. But the present suit is a common law action for damages, founded on an alleged breach of an official bond; here the statutory measure of damages does not apply, the recovery must be for the damages actually sustained. It is therefore evident that the Circuit Judge erred in excluding evidence tending to show that the execution debtor was insolvent when the execution was placed in the hands of the constable: citing, Sedgwick Ham., pp. 535-553, notes.
    
      W. J. Hicks for defendant in error, insisted:
    1. The jurisdiction of the magistrate depends upon the amount sued for and not the penalty of the bond. The statute makes the penalty divisible: citing Code, s. 772. .
    
      2.When the suit is commenced by motion, jurisdiction is expressly, given to the justices: citing Code, ss. 3589, 3590, 3591, 3600, 3601, 4167, 4164.
    And inasmuch as the remedy by motion is a mere substitute for a regular action, and is in derogation of the common law, no ground is perceived for granting a more extended jurisdiction to justices when suits are begun by motion than when they are begun in the regular manner.
    3. It has been held that on a motion for non-return of an execution, the measure of damages is the amount of the judgment, and the insolvency of the judgment debtor is no defense: citing Webb v. Armstrong, 5 Hum., 380; JBillingsly v. JRanhin, 2 Swan, 84.
    Now, the motion being only a substitute for a regular action, why should the measure of damages in the one case be different from that in the other?
    4. The proceedings before the magistrate were regular.
   NicholsoN, C. J.,

delivered the opinion of the court.

Plaintiffs in error are the sureties of Dean as a constable of Monroe county. They were sued by McDaniel as administrator of Lillard, to recover $100 as damages for the failure of Dean, as constable, to return an execution in favor of McDaniel’s intestate for about twelve dollars. Judgment was rendered by the justice in favor of the plaintiffs below, and also in the Circuit Court on appeal. Several questions are raised here which we proceed to dispose of.

1. It is said for plaintiffs in error that the execution, for the non-return of which damages are claimed was void, because it was issued by Summit as justice instead of by Montgomery, the justice who rendered the judgment. The proof shows that «Summit was sick on the day of trial, and on that account procured Montgomery, a justice in the same district, to try the cause. This was legal and proper; nor does the fact that Summit issued the execution render it either void or voidable.

2. It is said the justice of the peace had no jurisdiction of the case, because the penalty of the constable’s bond exceeded the amount of the justice’s jurisdiction. But the suit, although brought on the bond, was for $100, as damages for the breach of the constable’s bond. The Code, s. 772, recognizes the divisibility of the penalty of the bond, in holding the sureties responsible for breaches thereof by their principal. It is the am’ount of damages claimed which is the test of the justice’s jurisdiction, and not the penalty of the bond.

3. Plaintiffs in error offered evidence that when the execution was issued to the constable, the defendant therein was insolvent, and therefore that no damage resulted from its non-return. In the case of Webb v. Armstrong, 5 Hum., 380, this court held, that “the statute makes him liable for the amount of the judgment in terms, if he do not return the process, without reference to the solvency of the debtor, or the amount which was or might have been actually collected. It is the stern and rigid policy of the law, adopted to correct a great and growing evil — the non-return of the process of execution; and the plaintiff makes out his casé fully and entirely, by showing the reception of the execution by the sheriff, and its non-return by him. The sheriff can not defend himself by showing that the debtor was insolvent,” &c. This was the holding in the case of a motion against a sheriff, and there is no reason for any difference in the rule when the suit is by summons. It is not for the constable to receive an execution, and after he has failed to discharge his duty by making proper return, then to excuse his breach of duty by showing that the debtor was insolvent.

We find no error in the judgment, and affirm it.  