. Adams brought an action against Miller and others, before a justice of the peace, to recover a penalty of five dollars, for a violation of the statute respecting mills and millers. Process was served on the defendants, and failing to appear before the justice, judgment was rendered against them for the amount of the penalty claimed and costs. The defendants prosecuted an appeal to the Circuit Court, where the suit was dismissed, on their motion, because the plaintiff omitted to give security for costs. On the principle of the case of Robertson v. The County Commissioners, 5 Gilman, 559, the plaintiff should have given security for costs before the commencement of the action. At the time of the passage of the act of the 10th of January, 1827, which is incorporated into the 26th chapter of the Revised Statutes, justices of the peace had no jurisdiction of this kind of actions. Bowers v. Green, 1 Scammon, 42. But the jurisdiction was subsequently conferred on them. R. S., ch. 71, §15. And after it was conferred, the statute requiring security for costs to be given in penal actions, applied to actions of that character prosecuted before justices. If the defendants had raised the objection before the justice, the suit should have been dismissed; but it came too late for the first time in the Circuit Court. If urged before the justice, and overruled by him, it might have been renewed in the Circuit Court. Robertson v. The County Commissioners, supra. The objection is of a dilatory character, and must be insisted on at the earliest opportunity. The defendants, by neglecting to make the motion before the justice, waived the right to interpose it in the Circuit Court.
The Circuit Court erred in dismissing the suit; and the judgment must be reversed, with costs, and the cause remanded for further proceedings.
Judgment reversed.