
    John Powell v. James Jones.
    Whenever it appears, in the progress of a trial, that the plaintiff is not entitled to maintain his action, the court may interpose, and direct a nonsuit, although the same objection appears on the face of the declaration, and might have been made upon demurrer.
    An action may be maintained before a justice of the peace, by scire facias, against a constable, for a false return upon mesne process.
    A justice of the peace has jurisdiction of such cases under the statute.
    
      This is a writ of Error to reverse the proceedings and judgment of the court of Common Pleas of Coshocton county.
    The action is in case by Powell, the plaintiff in error, against Jones, the defendant in error, as a justice of the peace, for non-feasance in office.
    The declaration contains two counts, in which it is averred, in substance, that the plaintiff required the defendant, as justice of the peace, to issue mesne process, in his favor, against one William Q. Hill, then a resident of Adams township, in said county, for the purpose of enabling the plaintiff to recover, from said Hill, the sum of seventy-two dollars and fifty cents, damages, which the plaintiff had sustained by means of a false return made by said Hill, as a constable, on a certain writ of summons before that time issued against the plaintiff, by the defendant, as such justice.
    * It is averred, also, that it was the duty of the defendant, as [30 such justice, to have issued such mesne process, but that, not regarding the statute in such case made and provided, nor his duty in that behalf, but contriving, and wrongfully intending, unjustly to aggrieve and oppress the plaintiff, and to prevent and hinder him from recovering his said damages from said Hill, so sustained, the defendant, against his duty, as such justice, then and there absolutely refused to issue said mesne process, and by means of the premises, the plaintiff was greatly injured, prejudiced, and oppressed, to the damage of the plaintiff of five hundred dollars, etc.
    To this declaration tho defendant plead not guilty, and a jury was impanneled to try this issue.
    A bill of exceptions was taken on the trial, from which it appears-the plaintiff proved the defendant was a justice of the peace, and that, before the commencement of the suit, the plaintiff, by his agent, applied to him, as such justice, for mesne process against said Hill, who had then lately been a constable, etc., to recover damages against the said Hill, as such constable, which gaid damages the plaintiff alleged he had sustained by means of a false return, by said Hill, as such constable, "on a certain writ of summons, before that time issued against the said plaintiff, by the defendant, as such justice.
    The plaintiff, also, offered to prove, that on his application to the defendant, as such justice,- for process, he offered to file his hill of particulars against the said Hill, as such constable, and that the defendant, being such justice, refused to permit the plaintiff to file his said-bill of particulars, and refused, wrongfully, to issue said mesne process.. The counsel for the defendant then moved the court to arrest the testimony from the jury, and directa nonsuit, for the reason that a justice of the peace has, by law, no jurisdiction over a constable for a false return on mesne process. This motion was sustained, the testimony already given, arrested from the jury, the testimony offered not permitted to go to the jury, and a nonsuit directed.
    The decision of the court is, in various forms, assigned for error.
    * David Spangler, for plaintiff in error.
    It is maintained, imthe first place, that the defendant, having taken issue upon the charges contained in the declaration, by the plea of not guilty, and that issue submitted to a jury, it was not competent for the court before whom the case was being tried, to decide, as on demurrer, that the plaintiff had no good cause of action set out in his declaration.
    Had a verdict been rendered for the plaintiff, a motion, in arrest, would have been sanctioned by good and approved practice. But I know of no good practice that will sanction the procedure in this case ; and I respectfully claim that this court decide the point whether a parol demurrer can be interposed during the trial, to the country, of an issue of fact — the trial arrested in its progress — the testimony arrested from the jury — the parties arrested from their issue — and the plaintiff turned out of court because the opposite party, by his counsel, has found, or thinks he has found, some defect, either of form or substance, to the declaration.
    If such a practice be established by judicial authority, I would be for going one step further,'and say, go back, at once, to the practice •of the early ages, and have all the other pleadings, as well as the demurrers oretenus. But I am not certain that even the antiquity of •orefenus pleading furnishes a precedent for trying issues, in law, to the court, and issues in fact, to the country, both at the same time.
    The very point now under consideration was before the Supreme •court of New York, in the ease of Van Vetchen v. Graves, 4 Johns. 404, and that tribunal held, thal; “ on a motion of nonsuit, the court do not take notice of objections to the sufficiency of the declaration; they properly arise on a motion in arrest of judgment.”
    But, passing from this point, I maintain that the decision is wrong,
    The decision is, that a justice of the peace has no jurisdiction of a case against a constable for making a false return on mesne process. 38] But the statute says, that, “ in all cases * when a constable in this State shall make a false return, it shall be lawful for any justice of the peace,” etc. Swan’s Stat. 531, see. 116. It is contended, on the other side, that the language used means only false returns on final process. That all means part, and that the Common Pleas, having so decided, the decision must stand. What good reason is there for thus ■ wresting the language employed by the legislature?
    The object of the law undoubtedly was to give an easy, a speedy, and cheap remedy to a party conceiving himself injured by the misconduct of a constable, and to give that remedy before the tribunal whose officer he is : and where neither the delay or expense attendant ■on proceedings before higher courts shall intervene to prevent parties injured by the neglect, or the perverseness of constables, from holding them to their just responsibility. There is as much reason for the exercise of the jurisdiction of a justice .of the peace, for the injury caused by a false return on mesne, as on final process, and so thought the legislature ; and hence the provision, that “ in all cases, when a constable in this State shall make a false return,” etc.; notwithstanding which, it is sought to limit the provision to false returns on final process. The reason of the ease does not so limit it. The statute does not so limit it. And I would call the attention of the court to a rule o'f interpretation laid down by a celebrated writer on the law of nations. “ The first general maxims of interpretation,” says he, “ is, that it is not permitted to interpret what has no need of interpretation. When an act is conceived in clear and precise terms, when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which the treaty naturally presents. To go elsewhere, in search of conjectures, in order to restrain or extinguish it, is to endeavor to elude it. If this dangerous method be once admitted, there will be no act which it will not render useless.” Vattel, Book II, 308 ; see, also, Powell on contracts, title, “ Interpretation-of Agreements.” The same rule is, in effect, laid down in Blackstone’s Commentaries, for, he expressly says, that the words of a law must be first regarded, but where the words are ambiguous, we must then resort to construction.
    *In conclusion, it may be asked, why reason the question ? [39 What tribunal is better suited to deal with a ministerial officer who disobeys process, or makes false returss thereon, than that from which the process issued. And, indeed, in this case, there is no room for legitimate reasoning, or for construction. The statute is as plain and explicit as language can make it. It is its own interpreter. It says, “ in all cases where a constable in this State shall make a false return, a justice shall have jurisdiction.” And I presume it means what it says.
    Goddard and Converse, for defendant in error.
    Two points are made for the plaintiff in error.
    First: That the court, below, could not properly direct a nonsuit, where the plaintiff’s evidence, though inadequate to sustain an action, proved his declaration. In other words, that, as the objection was apparent upon the record, it could only be taken advantage of by demurrer, or by motion in arrest.
    Such a practice would lead to a very injudicious consumption of time, and would place the court somewhat in the power of the bar. It is the practice of the Supreme Court to arrest the progress of causes which can result in nothing, without inquiring whether, or not, the same question would arise upon the record. The ease of Sadler v. Robins, 1 Camp. 256, is directly in point. Lord Elienborough says : “ If there is evidently no consideration to raise a promise, so that the action can not be supported, why should the defendant be put to move in arrest of judgment? The plaintiff ought not to have brought his action here,” etc. “ In many other cases, where it is clear, the action will not lie, although the objection appears in the record, and might be taken advantage of by motion, in arrest of judgment, or by writ of error, judges are in the habit of directing a nonsuit.” This was a nisi prius decision, but the report shows that the point was reserved, and the opinion of Lord Elienborough was concurred in, unanimously, by the court of King’s Bench.
    * Second: The second position can not, we admit, be disposed off so easily. The whole question is as to the true interpretation of the 116th sec. of chap. 66, of the statutes. Undoubtedly, the language is broad enough to cover the plaintiff’s ease. But this admission leaves the question as before. The language of the law, which punished the drawing blood in the streets, was broad enough to cover the case of the surgeon who let blood in the streets to save. life. But the question was, there, as here, did the ease fall within the true intent and meaning of the law ? Is it not evident that the whole scope and design of that section was to afford a summary remedy against constables for a failure of duty in relation to final process ? Observe the connection — “ fail to make return,” “make a false return or, “-refuse to pay over money.” Observe, further, the process which the justice is to issue; a writ of “ scire facias’’ as if founded on some matter of record, to show cause why an “ execution ” shall not issue against him ; then the penalty given, and the stay of execution prohibited, all tend to show that final, and not mesne process, was in the mind of the legislator. All this, too, is analogous to a suit against a justice of the peace for a failurev to pay over money made on execution. He is suable before another justice; is liable for ten per centum penalty, and is not entitled to stay of execution. This construction of the statute makes our code a consistent one. Section 106 prescribes the general rule, that actions shall not be brought in a justice’s court against any officer for misconduct in office. But, it is obvious, that such a rule, with no exception, would lead to gross injustice. A summary remedy should be given to a party, who, having pursued a claim to judgment and execution, is defrauded of the fruits of his recovery by the misconduct of the justice or the constable. Such a remedy, we conceive, is given, and it, only, is given; and that all other suits against justices, against constables, as against all other officers, must be brought in the higher courts.
    The sections in the act of 1831, for which this amendatory act was a substitute, have not been adverted to. We * do not know that [41 they affect the question. They are sections 96, and 97, and may be found in 3 Chase, 1755.
   Wood, Judge.

The plaintiff argues that an issue having been submitted to the jury, it was error for the court, during the progress of the trial, to decide that the action was not sustainable; and nonsuit the plaintiff; or, in other words, as .the objection to a recovery was apparent on the face of the declaration, advantage could only be taken of such objection by demurrer, or after verdict, by motion in arrest of -judgment.

We think otherwise. Such a practice, if sanctioned no where else, is almost the necessary consequence of our system. It frequently saves a wasteful consumption of time, which would be occupied in fruitless litigation, and prevent the disposition of other business. It will be found, however, that such a practice is sanctioned by high authority. Lord Ellenborough once said, at Nisi Prius : “ In many cases where it is clear the action will not lie, although the objection appears in the record, and might be taken advantage of by motion in arrest of judgment, or by writ of error, judges are in the habit of directing a nonsuit.” Sadler v. Robbins, 1 Camp. 256. And this opinion was unanimously sustained by the King’s Bench. It has also been the practice of this court, and no injustice has been found to result from it. Slipher v. Fisher et al., 11 Ohio, 299.

An important inquiry, however, remains: Did the Common Pleas err in deciding that the magistrate had no jurisdiction over the constable for making a false return on mesne process ?

This depends on the correct construction of the 116th section of the act entitled “ an act defining the powers and duties of justices of the peace and constables in civil cases,” passed March 3, 1834; Swan’s Stat. 531. The section is in these words : “ That in all cases when any constable within this state shall fail to make return, as is provided in the act to which this is an amendment, or shall make a false return, or refuse to pay over money,” etc., “it shall be lawful for 42] any * justice of the peace in the township where said delinquent constable may reside, on being satisfied thereof, on application of any person or persons aggrieved thereby, his, her or their agent or attorney, to forthwith issue a scire facias against said constable, directed to any responsible individual who may be named by said justice, and who will consent to serve the same, commanding said constable to appear before said justice, to show cause why an execution shall not issue against him; and if the constable neglects to appear within five days from the time of serving said writ, or does not show proper cause why execution should not issue against him, then, and in that case, the justice shall enter judgment against said constable for the amount of the damages sustained, with costs, and ten per cent, penalty; on which judgment there shall be no stay of execution; and the justice shall, forthwith, issue execution for the amount of such judgment,” etc.

Is not the language of this section sufficiently broad to give the justice jurisdiction over a constable for a false return on mesne process ? and, also, to confer that jurisdiction by scire facias ? The terms of the act are general — “ or shall make a false return” — without defining whether upon mesne or final process, and without reference to the provisions of the act to which this is amendatory. It, therefore, appears to us a false return, on either, is within the statute. The pro-coeding by scire facias, it is true, may be considered as novel, against an officer for a false return, for the writ of scire facias, at common law, lies only on matter of record; but it is within the power of the legislature to modify the common law, and prescribe the forms of process and the mode of redress for any injury. By this enactment it was, probably, the intention of the Legislature to simplify the remedy against constables for malfeasance, or nonfeasance, in office — ■ to give speedy relief by subjecting them to the jurisdiction of justices, and to punish their delinquency by the addition of a ten per centum penalty on the damages, when liquidated, and sustained by their malfeasance or nonfeasance, and by prohibiting the stay of execution on judgments for such causes against them.

We are, therefore, of opinion that the court of Common Pleas [43 erred in deciding the justice had no jurisdiction over a constable for such false return, on mesne process, and in directing a nonsuit

Judgment reversed, and cause remanded.  