A motion to assess damages was filed and overruled, and, on a rehearing of this motion,
Lewis, J.,delivered the opinion of the court.
The relator’s motion for a rehearing of his motion to assess damages was sustained at our last term, and the latter was then continued, in order to furnish every possible facility for a full presentation of the grounds upon which the relator relies. We have now before usa carefully prepared brief, which appears to contain everything that can be said in support of the claim for damages in this proceeding.
Counsel again refer us to section 6 of the statute concerning mandamus (Wag. Stat. 925), which is as follows: “ In case a verdict shall be found for the person suing such writ, or judgment given for him on demurrer, or by nil dicit, or for want of a replication or other pleading, he *307shall recover his damages and costs' in such manner as he might have done in a civil action for a false return, and the same may be levied by execution, as in other cases.”
Counsel here assume—
1. That the “ damages ” provided for are those which the Telator has sustained by reason of the official malfeasance or omission which the mandamus was intended to remedy.
2. That the recovery of such damages, in the contingencies stated, is a positive right, which cannot be qualified or denied.
3. That the words “ in such manner,” etc., refer only to the forms or modes of procedure whereby the damages are to be recovered, and do not, in the least degree, qualify or limit the absolute right of recovery.
A short review of the history of the law will demonstrate that neither of these positions is tenable.
Our statute is, in this section and in nearly all the'rest, a literal transcript from the statute 9 Anne, ch. 20. Prior “to the adoption of that statute, the return upon the first, or alternative, writ of mandamus was not traversable. It was treated as a record, importing absolute verity. The trial proceeded, and judgment was rendered upon the facts as stated in the return, whether truly or otherwise. If the return was untrue in point of fact, the only relief for the party injured was in a subsequent action against the respondent for his false return upon the writ. The statute shortened the process by allowing a traverse of the return, .and by allowing the traverser, upon proof of its falsity, to recover his damages, etc., “in such manner as he might have done in a civil action for a false return”— i. e., for the false return already made in that case, and shown so to be. In a former opinion this court said : “ The civil action for a false return, here referred to, is an action against the defendant for his false return upon the alternative mandamus. It does not mean, as counsel’s argument seems to imply, any independent common-law proceeding for a false *308return, against a sheriff or other officer.” Such, in fact, has been the uniform interpretation in England' ever since the adoption of the statute, as well as in the States of the Union wherein the same statute has been enacted.
But, aside from historical adjuncts, our interpretation is the only one which can be reconciled with the other provisions of the Missouri statute. The 9th section, for example, provides that, “if any damages shall be recovered, by virtue of this chapter, against any person making return to such writ, he shall not be liable to be sued in any other-action or suit/or making such return.” If counsel’s interpretation of the 6th section be correct, the more appropriate protection would be against {‘ any other action or suit’’for the original malfeasance or omission. Why provide against another suit for making the return, if the damages here recoverable are for a different cause of action ?
The '4th section, supplementing the provisions for making up the issues, directs that “ such further proceedings shall be had therein for the determination thereof, and in such manner, as might have been had if the person suing-such'writ had brought his civil action for false return.” Here, again, is an unmistakable provision for settling the rights of the parties as they would have been settled in the common-law action upon the return, in the absence of statutory permission to take issue thereupon instead.
Again, the 2d section provides : “ When any writ of mandamus shall be issued, and return shall be made thereto, the person suing or prosecuting such writ shall plead to or traverse all or any of the material facts contained in such return.” Here is no provision for a demurrer. It follows that all the' benefits of the statute, including the summary recovery of damages, can apply only to an issue of fact raised upon the return.' The relator may demur. But, if he does so, he is remitted to his own common-law position as to damages, etc., and can claim no privileges under the statute. This harmonizes with the unbroken course of *309English adjudications, in-which it has been held that, if the return be found insufficient in law, no damages can be.recov•ered in any form of proceeding. Enfield v. Hills, 2 Lev. 236-238; Rex v. London, 3 B. & Ad. 276, 279; Rex v. London, 5 B. & Ad. 233. Here it may be asked, what means the 6th section, where it provides for damages to the person suing the writ, if judgment be given for him ‘ ‘ on demurrer, •or by nil dicit, or for want of a replication or other pleading?” The answer is plain enough. By the 3d section it is provided that ‘ ‘ the person making such return shall reply, take issue, or demur to the pleading of the party suing or prosecuting such writ.” When we remember that all these provisions are literally copied from the statute of Anne, and that no common-law writer or law-maker ever •confounded a ‘ ‘ plea ” or “ pleading ’ ’ with a demurrer— which implies, simply, a refusal to plead- — -it is easy enough to understand that the judgment upon demurrer referred to in the 6th section can be none other than a judgment on the respondent’s demurrer to the relator’s pleading; the judgment ‘ ‘ by nil dicit, or for want of a replication or other pleading,” will be, in like manner, a result of the respondent’s failure to “ reply, take issue, or demur,” as required by the 3d section. In any one of these contingencies the relator’s success will necessarily arise upon the issue of fact tendered by his traverse or plea to the return. It will never arise from the insufficiency in law of the return to the writ. This, again, is in harmony with the English rule already, mentioned, that no damages could be recovered •in the action for a false return unless the return had been .adjudged and declared sufficient in law. The foregoing general principles have been uniformily recognized in English interpretations of the statute of Anne, and coimsel do not show us why the same language, drafted into a Mis.souri .statute, should be differently construed here.
The Massachusetts statute referred to by counsel, although differently framed,. adheres to the same principles. After *310authorizing a traverse of the return (and also a demurrer), it provides that, £ £ if the party suing the writ maintains the-issue on his part, his damages shall be assessed,” etc. Like our 9th section, but in more explicit terms, it then declares that “do action shall be maintained for a false return to a writ of mandamus.” This, again, helps us to-perceive that, wherever, in these statutes, reference is made to the action for a false return, the law-maker is contemplating the return upon the alternative mandamus, and not a mere analogy with ordinary actions, for false return, against-sheriffs, etc.
It should now sufficiently appear that the damages, recoverable under the statute are not on account of the injury originally sustained by the person suing the writ, or any inconvenience directly resulting therefrom. Redress, for such injury or inconvenience must be sought, if at all,, in a separate action. It has been held, however, that the party injured by an official omission of a ministerial officer-may have his choice between the suit for damages and the remedy by mandamus; but he cannot pursue both. Kendall v. Stokes, 3 How. 87. The relator here, it maybe remarked, would have us permit him to pursue both, remedies in the same proceeding.
It should also appear that the statutory expression,, “in such manner,” etc., means nothing more nor less-than under the like conditions and limitations as would apply to a civil action for a false return upon the alternative writ, if there were no statute in the case. It follows that the relator, in this instance, is entitled to the assessment of damages demanded, if he could have recovered them in such an action, and not otherwise.
The relator demurred to the respondent’s return. The decision of this court, in effect, sustained his demurrer. Thus the return was adjudged insufficient in law; and, for this reason, as well as because the facts alleged in the return were neither traversed nor pleaded to, there could have; *311been no foundation for an action for false return. The relator is, therefore, not entitled to an assessment of damages.
The -reasoning and authorities with reference to damages, on an injunction bond have no application here. There, it is the defendant whose damages are assessed. He has not only been restrained in the exercise of a lawful right, but has also been forced into court against his will. The relator here comes into court voluntarily. True, he finds this necessary in order to enforce his rights. But the same may be said of every plaintiff in debt, covenant, or trespass. We have no precedent of an assessment of damages in any such case, because of the expenses or inconvenience of the suit. The motion is overruled.
Judge Hayden concurs; Judge Bakewell not sitting.