(dissenting.) The question in this case is whether or not the plaintiffs’ cause of action against the late D. M. Wilson, as sheriff of St. Francis county, for failure to return an execution — for summary judgment for the full amount of plaintiffs’ original judgment, cost and interest — survives after his death against his administrator and his sureties.
The plaintiffs’ suit is apparently a substitution for the motion provided for in the first subdivision of section 3964, Mansfield’s Digest, in the chapter denominated “Judgments Summary” — a chapter made of portions of the Civil Code and the act approved February 15, 1887.
It is also contended that the proceeding is based upon the provisions of Mansfield’s Digest, sections 3061-3064 inclusive — sections that come down to us from the Revised Statutes of 1837-8. The offenses and penalties, however, are different in the two statutes.
Whether the act of 1857, repeals the’corresponding section of the Revised Statutes, or not, I will not now stop to discuss, as it really, makes, little difference in our present inquiry.
It is evident, moreover, that this statute gives two remedies, one by motion for summary judgment, and the other by suit on the bond of the sheriff. If by motion, the judgment against the sheriff and his sureties must be a sum certain — the amount of the judgment upon which the execution was issued, the costs of that proceeding, and ten per centum thereon. Being a summary proceeding, it is not a trial by jury, but by the court. There being no defense to the proceeding except a denial of the failure to return, there is not, at least not necessarily, any consideration to the plaintiff for his claim. The object of the procedure is not to pay him anything owing- to .him, or to indemnify him for any loss, but the sole object is one of governmental policy, to compel a rigid and strict performance of duty on the part of this public officer. In other words, the amount so recovered of the sheriff and sureties is a statutory penalty assessed •upon the defaulting officer, and given to the private individual most nearly connected with the transaction, most interested in it, and therefore the one most likely to pursue the sheriff with most vigilance and tenacity. On the other hand, the remedy by suit on the official bond of the sheriff must be in the name of the State for the use and benefit of the plaintiff, or the person aggrieved, and can result at farthest only in the recovery of a sum equal to the loss and damage claimed. Murfree on Official Bonds, sec. 654. It is plain that the one is an action (if a distinct action at all) ex delicto, and the other an action ex contractu, by the person aggrieved or injured. The one is a suit for a penalty imposed by law upon a sheriff for the commission of a tort; the other is a waiver of the tort, and a suit on a contract of indemnity. The one must be instituted within two years from the time the cause of action accrued, as provided by sections 4481 and 4482, Mansfield’s Digest; and the other within four years, as provided by section 4485. It is evident, therefore, that the two procedures are not interchangeable, and the one cannot be made to answer the purpose of the other without the greatest confusion and an unnecessary destruction of all system. The case of Hawkins v. Taylor, 56 Ark. 45, is not in conflict with the view we here express.
It is proper, at this stage of the discussion, to inquire as to what actions survive against the legal representative of a deceased person, according to the laws of this State. It may be said that all actions upon contract survive. Section 5223, Mansfield’s Digest, provides that actions for wrongs done to the person or property of another shall survive. The next section excepts actions for slander and libel. These two sections are taken from the Revised Statutes, and were originally taken substantially,'if not literally, from the New York statutes, as we gather from the history of our earliest State legislation. In the absence of adjudications of our own, the construction put upon its identical or similar statute by the highest courts of - that State are something more than persuasive, if, indeed, they be less than authoritative. The courts of that State have never considered acts of non-feasance of sheriffs and other public officers, like that under consideration, as being within the purview of that statute. People v. Gibbs, 9 Wend. 29 ; Stokes v. Stickney, 96 N. Y. 323. It is admitted everywhere that the rule thus adhered to in New York is the rule of the common law. Lynn's Adm'r v. Sisk, 9 B. Monroe, 135. The courts of the United States, wherein the common law procedure prevails, will not enforce a penal statute against a deceased person, even when sitting in a State where the action is expressly made to survive. All suits for penalties abate in the Federal courts on the death of the persons sought to be made subject to them. Schreiber v. Sharpless, 110 U. S. 76.
The person authorized to sue has no vested right in the suit for a penalty, because at common law a repeal of the statute took away the right of action. Union Pac. Ry. Co. v. Proctor, 12 Col. 194 ; State v. Mason, 108 Ind. 48 ; Western Union Tel. Co. v. Brown, ib. 538 ; Mix v. Ill. Central Ry. Co. 116 Ill. 502 ; Endlich, Int. St., sec. 479.
Persons aggrieved or damaged have their actions against sheriffs on their official bonds, and these survive as do all other actions on contract. They also have their actions for wrongs done to their persons or their property,-and these survive. Pains, penalties and punishments, which are imposed and inflicted at the instance and through the power of the sovereign, have their purpose, which ceases to be useful, humane or reasonable, if the subjects of them have gone off the stage of action. There is no vested right in the fruits of these penal proceedings and prosecutions, which the private individual can lay claim to ; and the sovereign cannot stoop to visit the pains and penalties, from which death has shielded the delinquent, upon the widow and the orphan.
There is a class of penalties which are the subjects of contracts between individuals, and suits for their enforcement survive against the legal representatives of the delinquent obligors. Such are penalties agreed upon by the parties in case of breaches of these contracts. These, however, are in reality not penalties, but liquidated damages. They are parts and parcels of contracts. The sums fixed are but the sums constituting the measure of damages agreed upon in cases of breaches of the contracts. This is to avoid disputes over the amounts to be recovered in case obligors fail to keep their covenants. The amounts are usually above actual damages, it is true, but this is to cover such consequential damages as cannot be ascertained and recovered by suit otherwise. There are these distinguishing features in these liquidated damages which are not found in penalties imposed, namely : They are matters of agreement between contracting parties, and not impositions by the sovereign power. They are always final, and not cumulative ; whereas penalties may be, and often are, in addition to damages, accordingly as the will of the sovereign may dictate. Liquidated damages always go to the obligees who have been injured by the breach of the contract, while penalties may go to the State, to the complainant, or to any other person or object, which the will of the sovereign may designate in its laws. Liquidated damages are always indemnities ; penalties are seldom such. The one, being purely a matter of contract, survives against the estate of those who fail to perform its obligations.
It is argued that the sheriff and his sureties are not only bound by the stipulations of the official bond, but by all the provisions of law pertaining to the subject which are in force at the time of the execution of the bond. That is true, but what were the provisions of the law in force in this State at the time the bond in this case was executed? That question is easily answered. Section 3061, Mansfield’s Digest, was in force then, but that provided no remedy against the sureties. Section 3062 was also in force, but that only authorizes a suit on the bond by the person aggrieved — that is, injured. Section 3063 was in force at the time, but every instance therein mentioned is one in which the officer has either levied upon property sold, received the money for it, or should have so received it, and is virtually guilty of either embezzlement or negligent waste; and yet that section for these positive malfeasances only authorizes a suit on the bond, so far as the sureties are concerned, while it authorizes summary proceeding by motion against the sheriff himself, but that only for the actual amount that ought to have been paid over. Section 3064 simply provides that proceedings against the officer by motion shall not exempt the sureties from liability on the bond.
So much for the sections of the Digest which have come down to us from the Revised Statutes. It would seem that appellant’s contention that summary motions against sureties were not authorized by those old statutes is correct.
The authority for penalty judgments against officers and sureties is the act approved February 15, 1857, and digested as sections 3963-3966, inclusive, codified with the paragraphs of the Civil Code, under the head of “Judgments Summary,” and digested as sections 3957-3962 inclusive. The first sub-division of section 3964 is the only law authorizing summary judgments against sheriffs and their sureties for his failing to return executions ; and that fixes the amount of the penalty in each case at the amount of the judgment upon which the execution was issued, all the costs, and ten per cent, thereon, not a cent of which the plaintiff may be entitled to because of any loss or damage he may have suffered by reason of the failure to return the execution. Not a word is said in all these statutes that actions, or rather motions, for the recovery of these penalties survive after the death of the delinquents ; not a word to indicate to us that the common law on the subject has been repealed, or in any wise changed; and yet there is not a court in all the land, so far as I can find, unless directed by express statute, that does not maintain the integrit3r of the common law rule; and this rule, up to this hour, has been the law, which is part and parcel of every official bond ever made in this State, as I view it; and I think the rule should still prevail, and for this reason I am constrained, although reluctantly, to dissent from the opinion of the majority of the court in this case.
My brother Wood concurs in this dissenting opinion.