dissenting.
Flemming B. McCurdy moved, before a justice of the peace of Jasper county, for a judgment against Willie D. Brown, a constable of a township in said county, and Teyon Gibson, the security of said Brown, in his official bond, for double the amount of an execution delivered to said Brown, and which he had failed to return. Judgment was given before the justice, for McCurdy, and the defendants, Brown and Gibson, appealed to the Circuit Court. When the cause came into the Circuit Court, Brown and'Gibson, appellants there, moved to dismiss it. It was dismissed ■on their motion, and exceptions taken to the decision of that court, and to reverse the judgment of the Circuit Court, this writ of error is now prosecuted.
The reason assigned for the dismissal of the cause, in the Circuit Court, was, first, that the plaintiff, before he commenced his proceeding, did not file a bond with security, in conformity with the provision of the 1st section of the act concerning costs, p.'127 of the Digest of 1835; and, second, the proceeding by motion, against the constable is not authorized by law.
1. .The 1st section of the act concerning costs requires that in all actions for the use of any person, the plaintiif or person for whose use snch action is to be commenced, shall, before he institutes such suit, file with the clerk of the Circuit Court, in which the action is to be commenced, a bond, &c., for costs.
By the act of 1835, three different remedies against constables are provided, first, one by motion, against the constable alone. If the constable fails on this motion, he forfeits and pays to the person moving, double the amount of the execution. (Sec. 8 of the aet concerning constables, p. 117). Second, by summons against the constable alone, in which he may recover the amount of the money received,- and 100 per cent, per year; (Digest, p. 368, sec. 20-22 of art. 7 of the act concerning justices’ courts;) and, third, one may sue the constable and his securities, on the official bond, and recover, as in the aforesaid proceeding, by summons against the constable.
By the 5th section of the act entitled “An act the better to secure the liability of county officers, on their official bonds,” p. 31 of the acts of 1841, it is providéd, that “ Persons injured by the misfeasance or neglect of any such officer, may proceed against such principal, (or) any one or more of his securities, jointly or severally, in any proceeding authorized by law, against such officer, for official neglect or injury.”
Persons suing on official bonds, in the Circuit Court, are required to give bonds to secure costs. It is not provided in the statute that the plaintiff moving against a constable shall give security for costs, probably on account of the restricted jurisdiction of the justice; nor is one suing on a constable’s bond before a justice *553of the peace, required to give bond for costs. (Sec. 4 of act respecting constables, Digest, p.116. It is not, then, apparent why be should give security for costs, when he moves against both constable and security. The Circuit Court, then, in my opinion, committed error, in dismissing the case because security had not been given for costs.
2. The provisions of the act of 1841, above cited, are very broad. It should read “and” instead of “or,” with which last word the blank in the 5th section is filled; but the meaning is, in my opinion, the same, with either of those words inserted. The injured person, then, may move against the constable and bis securities jointly or severally, in any proceeding authorized by law, against such oificer for official neglect or injury. The two remedies above-mentioned, given in the Digest against the constable alone, are jfor the same injuries, and I can see no reason why the last law should not be construed to give the injured person the right to choose either the one or the other, and if he choose to move against the constable and his securities, he ought, in my opinion, to recover 100 per cent., as he would have done had he moved against the constable alone.
In my opinion, the judgment of the Circuit Court ought to he reversed.